SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-12-75302-00
DATE: 2014/06/09

RE: Kathleen Fotwe v. John Aning

BEFORE: Lemon, J

COUNSEL:
P. Okoronkwo, for the Applicant
Ravital Khardas, for the Respondent

HEARD: April 29, 2014

E N D O R S E M E N T

ISSUE

[1] Mr. Aning moves to set aside the final order of O’Connor J. dated March 17, 2014. After hearing submissions, I ordered as follows:

For reasons to follow, motion is granted.

The judgment of O’Connor J. dated March 17, 2014 is set aside.

Applicant shall withdraw her answer in the Oshawa proceedings within 15 days.

Respondent shall withdraw his petition in the Oshawa proceedings within 10 days thereafter.

Respondent shall file his answer and financial statement by May 30^th 2014.

Case conference to be held July 30, 2014 at 10 AM.

Costs to the respondent, Mr. Aning, fixed in the amount of $7,500 payable after trial or other resolution of the case.

[2] These are my reasons.

BACKGROUND

[3] Much of the background is not disputed.

[4] The parties commenced a relationship in 1999 and were married in Toronto, Ontario, on August 20, 2004. They separated on a final basis in May 2010. When they separated, they both resided in Atlanta, Georgia, USA. There are no children from the marriage.

[5] On or about January 2012, Mr. Aning retained his previous lawyer, Ms. Anne Silverman, to represent him in connection with the separation.

[6] On June 21, 2012, Ms. Fotwe commenced this divorce application in Brampton. She was represented by Mr. Chima.

[7] On June 27, 2012, Mr. Aning commenced a divorce application in Oshawa.

[8] Mr. Aning was served with Ms. Fotwe’s Application on July 3, 2012. Accordingly, when Mr. Aning commenced his Application in Oshawa, he was not aware of Ms. Fotwe’s Application; he was residing in Ajax, Ontario, and believed that Ms. Fotwe was living in Atlanta, Georgia.

[9] On July 30, 2012, Ms. Fotwe served and filed her Answer in response to Mr. Aning’s Application in the Oshawa court. At this time, Mr. Aning was in the process of preparing his Answer to be filed in the Brampton proceeding.

[10] On July 30, 2012, the parties, through counsel, received a notice from the Ministry of the Attorney General advising that as there were two divorce applications, one of the divorces must be withdrawn before the other could proceed.

[11] Counsel conferred by correspondence and on November 2, 2012, Ms. Silverman served Mr. Aning’s Notice of Withdrawal of his Application which was filed in the Oshawa court. However, since Ms. Fotwe also filed her Answer in the Oshawa court, she needed to withdraw her Answer to allow the file to be closed.

[12] Ms. Silverman sent further correspondence to Mr. Chima, advising that his client must serve and file her Notice of Withdrawal of her Answer in the Oshawa Court, failing which the file would remain open. If that file remained open, the Brampton file could not proceed. Mr. Aning was unable to file his Answer in Brampton until Ms. Fotwe withdrew her answer in Oshawa.

[13] These letters were dated November 2 and 7, 2012. In particular, Ms. Silverman’s letter of November 7th, 2012 read as follows:

The clerk from the Superior Court of Justice in Oshawa has advised that Kathleen Fotwe’s Answer, dated January 25, 2012 must be withdrawn. The file is still active due to Ms. Fotwe’s Answer. The Oshawa divorce file must be closed before the Brampton divorce file can proceed.

Please serve the Notice of Withdrawal to this office as soon as possible.

[14] It is agreed by counsel that Mr. Chima did not respond to those letters.

[15] In November 2013, without further notice to Ms. Silverman, Mr. Chima filed a trial record for an uncontested hearing in Brampton. Coincidentally, I reviewed that uncontested material on November 21, 2013. Among other things, I suggested that a viva voce uncontested hearing would be the appropriate step to take. From my review of the file, I did not notice anything to suggest that Mr. Aning was represented.

[16] Ms. Fotwe’s affidavit sworn October 31, 2013, only makes one vague reference to Mr. Aning’s lawyer at the end of the affidavit at paragraph 35 as follows:

Despite being served with my Application since July 3, 2012 as well as an Answer (served on him on July 30, 2012) to an Application subsequently filed at the Oshawa courthouse (and that was eventually withdrawn by his counsel, Anne Silverman, for being an abuse of process), the Respondent has not endeavoured to mount any challenge to the reliefs and therefore, impliedly admits to the reliefs I am seeking in my Application.

[17] On January 2, 2014, Ms. Silverman once again wrote to Mr. Chima advising that his client must file her Notice of Withdrawal of her Answer in the Oshawa court and that the file must be closed before the Brampton divorce file could proceed.

[18] A further letter was sent by Ms. Silverman on February 6, 2014. In that letter, Ms. Silverman advised Mr. Chima that if his client no longer wished to continue with the matter, that she should also withdraw her Application filed in the Superior Court of Justice in Brampton.

[19] It is agreed that Mr. Chima did not respond to either of those letters. Accordingly, it is agreed that he did not tell Ms. Silverman of his request for an uncontested hearing in Brampton.

[20] The uncontested hearing proceeded before O’Connor J. on March 17, 2014. The trial record filed before O’Connor J. stated, “unknown” under Mr. Aning’s lawyer’s information in the title of proceedings. It is agreed that O’Connor J. was not advised of any of the correspondence between Ms. Silverman and Mr. Chima. The only possible notice to O’Connor J. of representation for Mr. Aning was the Notice of Withdrawal that had been filed November 2, 2012. Three pages behind it is a letter from Ms. Silverman dated November 2, 2012. There it says, besides serving the Notice of Withdrawal, “I will serve you with further documents that are going to be filed at the Superior Court of Justice in Brampton”.

[21] At no time prior to the final order being made did Mr. Chima advise O’Connor J. that Mr. Aning retained counsel; that counsel were in communications; that the parties encountered procedural difficulties as a result of the commencement of both proceedings; that the parties received correspondence from the Attorney General; and that, despite requests, Ms. Fotwe had not served and filed her Notice of Withdrawal of her Answer in the Oshawa court.

[22] Among other things, O’Connor J. ordered Mr. Aning to pay support in the amount of $2,068 per month; granted a number of property claims and awarded $20,000 in costs.

[23] At no time prior to the final order did Mr. Chima advise Ms. Silverman of Ms. Fotwe’s intention to proceed to obtain a final order in this matter. Mr. Aning was unaware that Ms. Fotwe proceeded by way of an uncontested trial; he was unaware that she was able to proceed, based on the letter from the Attorney General.

[24] Mr. Aning received the order of O’Connor J. by regular mail on or about March 21, 2014. Mr. Aning immediately contacted Ms. Silverman.

[25] Ms. Silverman wrote to Mr. Chima on March 21, 2014 with respect to the events which had occurred. Mr. Chima wrote to Ms. Silverman on March 26, 2014. He declined to set aside the judgement. Of greatest significance to me, he stated:

My primary obligation or duty is to my client and all things considered, we are under no duty – legal or equitable – to you or your client to not pursue our matter diligently. My professional duty is to proceed expeditiously before the court to secure and protect my client’s interests pursuant to her application dated June 21, 2012.

Any tardiness, lack of diligence, faults, delays, wrongful legal and procedural steps undertaken in this matter and that have resulted in the unintended results or orders made against your client rest squarely on your shoulders and/or your clients.

[26] On March 26, 2014, Mr. Aning attended at Ms. Silverman’s office. Ms. Silverman gave Mr. Aning his file and advised him to look for alternative counsel as she was unable to represent him in a motion to set aside this order or in any appeal process. Mr. Aning searched for a lawyer to assist him. He went to five different lawyers who refused to take his case.

[27] On April 9, 2014, Mr. Aning retained Fine & Associates Professional Corporation. Fine & Associates wrote to Mr. Chima on April 10, 2014 in an attempt to set aside the final order on terms. Again, Mr. Chima declined to do so.

RESPONDENT’S POSITION

[28] Mr. Aning submits that Mr. Chima failed to advise the court of the relevant background information. He submits that had Mr. Chima done so, the matter would not have proceeded. Further, there are a variety of issues relating to the equalization and support that were not put before Justice O’Connor. In particular, there is a dispute as to the jurisdiction of the court, given that the parties separated in one of the United States of America. Finally, Mr. Aning submits that he moved as quickly as possible once given notice of the judgment.

APPLICANT’S POSITION

[29] In Ms. Fotwe’s factum, Mr. Chima submits as follows:

10. This Honourable Court does not have the jurisdiction to grant the respondent’s Motion. This is because Rule 25 (19) of the Family Law Rule relied upon by the Respondent does not apply to his Motion as there was no fraud made in obtaining the Order of March 17, 2014. Also, the Order did not contain any mistake and no Notice is required to be served on the Respondent before the applicant can obtain the order.

11. Rule 25(19) of the Family Law Rules contemplates a situation where Notice is required to be given but for some reason, it was not given, such as situation of urgency. But in this case at the bar, the Applicant is not required to give the Respondent Notice before she can obtain Order in an uncontested trial. This is because rule 10(5) of the Family Law Rules provides: “if a respondent does not serve and file an answer as this rule required, or if the answer is struck out by an order; (a) the respondent is not entitled to any further notice of steps in the case (except as sub rule 25(13) (service of order) provides, (b) the respondent is not entitled to participate in the case in any way, (c) the court may deal with the case in the respondent’s absence; and (d) the clerk may set a date for an uncontested trial.”

12. In the case at bar, the Respondent despite being served with the Application and despite being represented by Counsel did not serve and file an answer as required by the rules of the Court. As a result, the Respondent is not entitled to be served with any Notice of any further steps being taken by the Applicant in this matter. Neither is he allowed to participate in the matter in any way since he chose not to respond to the Application by not serving and filing an answer. The Court is permitted by the Rules to proceed with the matter in his absence. There is no question of the Court being misled by the applicant or her Counsel in this matter. They have no further obligation or responsibility to the Respondent or his Counsel after serving him with the application and they made a deliberate decision not to respond to it by not serving and filing an answer. The Respondent retained a Lawyer, who knows the Rules of the Court and he cannot claim that he was confused or does not know the appropriate steps to take in this matter. If he was misadvised by his Counsel, his cause of action lies in bringing a negligence action against her not in bringing this Motion seeking to set aside a Final Order that was made following the Rules of the Court in a bona fide manner.

13. Further, the respondent Counsel’s by arguing that in a Motion to set aside a default judgment that three issue, i.e. (1) whether the moving party acted quickly in bringing the Motion to set aside after becoming aware of the Order; (2) whether the moving party has plausible explanation for the default and (3) whether the moving party can demonstrate through evidence that he has an arguable case on the merit, is inviting this court to apply Rule 19.08 of the Rules of Civil Procedure by analogy as envisaged by Rule 1(7) of the Family Law Rules. Rule 19.08 of the Civil Procedure Rules deals with setting aside a default judgment. The Order of Honourable Justice O’Connor is not a default judgment, it is a final Order made after reviewing the evidence before him and after a Viva Voce hearing in an uncontested trial. As such that Rule does not apply here.

14. Assuming, but without conceding that Rule 19.08 of the Rules of Civil Procedure should apply in this case by analogy, it is my submission that the Respondent did not satisfy the test required by that Rule to set aside a default judgment. The Respondent gave no plausible explanation as to why he did not serve and file an answer to the Applicant’s application despite being served and despite having engaged a Lawyer. Even if the Respondent does not understand the Rules of Family Court, he retained a lawyer who does. The argument that he was waiting for the matter in Oshawa court to be withdrawn before responding to the Application that was properly served on him is just a mere excuse or unpersuasive rationalization. The Respondent simply made deliberate decision to ignore the court process that was served on him as a way of frustrating the applicant. Since he did not satisfy the requirement of Rule 19.08 of Civil Procedure Rules, his Motion should be dismissed.

15. Further, the Respondent cannot rely on the inherent jurisdiction of this court to set aside the Order of Honourable Justice O’Connor made on March 17, 2014. This is because for the Respondent to rely on the inherent jurisdiction of this court to set aside the Order of March 17, 2014, he must satisfy a stringent test established by the jurisprudence of this court. The Respondent must show through clear and credible evidence that he has discovered or has evidence available that if it was available at the time the original order was made, the court would not have made the order. It must be evidence that was not in existence at the time the order was made and would not have been discovered by the Respondent through any diligent effort. But that is not the case here. There is no evidence sought to be presented by the Respondent now that was not available at the time the Order of March 17, 2014 was made. The Respondent simply made a deliberate decision to ignore the Applicant’s application and frustrate her quest for justice. Therefore, no miscarriage of justice will result by the court refusing to set aside its Order of March 17, 2014.

AUTHORITIES

[30] Section 25(19) of the Family Law Rules provides as follows:

CHANGING ORDER – FRAUD, MISTAKE, LACK OF NOTICE

19. The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[31] In Bargiel v. Mainville, 2012 ONSC 7229, Pelletier J. explained:

9. Counsel are in agreement as to the applicable legal standard in relation to a motion to set aside a default judgment. Three issues must be examined:

1. Whether the motion to set aside the default judgment was made as soon as possible following the moving party’s discovery of the judgment:

2. Whether the moving party has established that there exists a sufficient explanation for the default:

3. Whether the moving party has set forth sufficient evidence to establish that there is at the very least an arguable case to present on the merits.

10. It has been held that the test is disjunctive however that the Court is required to consider each criteria in its assessment, contextually conducted, of how to best balance the interests of the parties. [Citations omitted.]

[32] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at paras. 47-51, Gillese J.A. sets out the test for setting aside a default judgment as:

The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski, 2012 ONSC 3836, 2012 ONSC 3836, at paras. 19-20 and 23-24.

The court must consider the following three factors:

a. whether the motion was brought promptly after the defendant learned of the default judgment;

b. whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

c. whether the facts establish that the defendant has an arguable defence on the merits.

To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. 2007 ONCA 333, 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

d. the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e. the effect of any order the court might make on the overall integrity of the administration of justice.

These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.

[33] Pursuant to the Rules of Professional Conduct adopted by the Law Society of Upper Canada, the following is of significance in regards to Mr. Chima’s conduct:

4.01 THE LAWYER AS ADVOCATE

Advocacy

4.01(1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing where justice can be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations where the full proof and argument inherent in the adversary system cannot be achieved, the lawyer must take particular care to be accurate, candid, and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.

(2) When acting as an advocate, a lawyer shall not

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable,

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,

Courtesy

(6) A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation.

6.01 RESPONSIBILITY TO THE PROFESSION GENERALLY

Integrity

6.01 (1) A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession.

Commentary

Integrity is the fundamental quality of any person who seeks to practise as a lawyer. If a client has any doubt about his or her lawyer's trustworthiness, the essential element in the true lawyer-client relationship will be missing. If integrity is lacking, the lawyer's usefulness to the client and reputation within the profession will be destroyed regardless of how competent the lawyer may be.

Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer's conduct should reflect credit on the legal profession, inspire the confidence, respect and trust of clients and the community, and avoid even the appearance of impropriety.

6.03 RESPONSIBILITY TO LAWYERS AND OTHERS

Courtesy and Good Faith

6.03 (1) A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

Commentary

The public interest demands that matters entrusted to a lawyer be dealt with effectively and expeditiously, and fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the rule will impair the ability of lawyers to perform their function properly.

1. A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client.

2. A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.

(6) A lawyer shall answer with reasonable promptness all professional letters and communications from other legal practitioners that require an answer, and a lawyer shall be punctual in fulfilling all commitments. [Emphasis added.]

[34] The Canadian Bar Association’s Code of Professional Conduct sets out as follows:

CHAPTER IX

THE LAWYER AS ADVOCATE

RULE

When acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law.

COMMENTARIES

Guiding Principles

Prohibited Conduct

2. The lawyer must not, for example:

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable;

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct;

Errors and Omissions

3. The lawyer who has unknowingly done or failed to do something that, if done or omitted knowingly, would have been in breach of this Rule and discovers it, has a duty to the court, subject to the Rule relating to confidential information (Chapter IV), to disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

Courtesy

16. The lawyer should at all times be courteous, civil, and act in good faith to the court or tribunal and to all persons with whom the lawyer has dealings in the course of an action or proceeding. Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though not punished as contempt, might well merit disciplinary action.

Role in Adversary Proceedings

17. In adversary proceedings, the lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (save as required by law or under commentaries 2(h) or 7 above) to assist an adversary or advance matters derogatory to the client’s case. When opposing interests are not represented, for example, in ex parte or uncontested matters, or in other situations where the full proof and argument inherent in the adversary system cannot be obtained, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the court is not misled.

CHAPTER XVI

RESPONSIBILITY TO LAWYERS AND OTHERS

RULE

The lawyer’s conduct toward all persons with whom the lawyer comes into contact in practice should be characterized by courtesy and good faith.

COMMENTARIES

Guiding Principles

1. Public interest demands that matters entrusted to the lawyer be dealt with effectively and expeditiously. Fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the Rule will impair the ability of lawyers to perform their function properly.

2. The lawyer should accede to reasonable requests for trial dates, adjournments, waivers of procedural formalities and similar matters that do not prejudice the rights of the client. The lawyer who knows that another lawyer has been consulted in a matter should not proceed by default in the matter without enquiry and warning.

Avoidance of Sharp Practices

4. The lawyer should avoid sharp practice and not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving any sacrifice of the client’s rights. The lawyer should not, unless required by the transaction, impose on other lawyers impossible, impractical or manifestly unfair conditions of trust, including those with respect to time restraints and the payment of penalty interest.

5. The lawyer should answer with reasonable promptness all professional letters and communications from other lawyers that require an answer and should be punctual in fulfilling all commitments. [Footnotes omitted.] [Emphasis added.]

[35] The Advocates’ Society also has its principles of civility and professionalism for advocates. There, that respected Society sets out the following relevant principles:

The PRINCIPLES

An Advocate’s Duty to Clients and Witnesses

1. Advocates should pursue the interests of their clients resolutely, within the bounds of the law and the rules of professional conduct, and to the best of their abilities. Advocates must "raise fearlessly every issue, advance every argument, and ask every question." At all times, however, they must represent their clients responsibly and with civility and integrity. The duty of zealous representation must be balanced with duties to the court, to opposing counsel and to the administration of justice.

An Advocate’s Duty to the Court

1. Advocates should use tactics that are legal, honest and respectful of courts and tribunals.

2. Advocates should not knowingly permit the giving of false evidence or engage in any other conduct calculated to induce the court to act under a misapprehension of the facts.

An Advocate’s Duty to Opposing Counsel

1. The proper administration of justice requires the orderly and civil conduct of proceedings. Advocates should, at all times, act with civility in accordance with the Principles of Civility for Advocates. They should engage with opposing counsel in a civil manner even when faced with challenging issues, conflict and disagreement.

2. Advocates should extend professional courtesies to opposing counsel. Such courtesies include extending assistance, to which opposing counsel are not entitled by law, that does not prejudice their own client.

Relations with Opposing Counsel

General Guidelines

3. Advocates should always be honest and truthful with opposing counsel.

Cooperating with Opposing Counsel

6. When advocates are about to send written or electronic communication, or take a fresh step in a proceeding which may reasonably be unexpected, they should provide opposing counsel with some advance notice where to do so does not compromise a client's interests.

Communications with Opposing Counsel

7. Advocates should respond promptly to correspondence and communications, including electronic communications, from opposing counsel.

Conduct That Undermines Cooperation among Advocates

17. Advocates should avoid sharp practice. They should not take advantage of, or act without fair warning to opposing counsel, upon slips, irregularities, mistakes or inadvertence.

COUNSEL’S RELATIONS with THE JUDICIARY

What Judges Can Expect from Advocates

64. Judges are entitled to expect that advocates will treat the court with candour, fairness and courtesy. [Footnotes omitted.] [Emphasis added.]

ANALYSIS

MOVED PROMPTLY

[36] I am satisfied that the Respondent moved as quickly as possible to bring this matter forward to the court. That is not seriously argued by the Applicant.

VALID REASON

[37] It astonishes and upsets me that Mr. Chima seriously argues this matter at all. As can be seen by the unanimous opinion of the professional bodies of Canadian lawyers, Mr. Chima failed to carry out his duties to his client, to opposing counsel and to the Court. His letter, set out above, shows that he is lacking in the knowledge of this basic part of being a lawyer.

[38] Mr. Chima failed to respond to Ms. Silverman’s correspondence; he failed to notify her of the step he was taking; and he took that step despite knowing that pursuant to the notices from the Ministry of the Attorney General, he should not do so. Had he simply carried out the common sense, civil and professional step of responding to her letters, his client would not have had her time and money wasted by the uncontested hearing.

[39] He failed to point out to either myself or Justice O’Connor that there was other counsel appearing on behalf of Mr. Aning. It is no answer to say that deep in the documents there was a piece of correspondence from Mr. Aning’s counsel. Given the title of proceedings and the evidence given by Ms. Fotwe, the clear indication from the materials is that Mr. Aning was taking no steps in response to the application. On the agreed facts, it is clear that that was not the case.

[40] I have no doubt that had it been brought to my attention that Mr. Aning had counsel, I would not have sent the matter on for an uncontested hearing but rather required that the motion be served. I have no doubt that O’Connor J would have done the same had he been told the same.

[41] Without proper notice to Mr. Aning, there is valid reason why he did not appear before O’Connor J.

ARGUABLE DEFENCE

[42] Based on the affidavit of Mr. Aning, it is clear that there is a substantial basis for his defence. Without full and complete disclosure, a proper order could not have been made. Given the failure of Mr. Chima to provide the obvious information he was required to provide, I have serious concerns as to whether all evidence relating to all of the matrimonial issues was disclosed to O’Connor J.

POTENTIAL PREJUDICE

[43] The prejudice to Mr. Aning is obvious. Given the conduct of Mr. Chima, any prejudice to Ms. Fotwe can be remedied by Mr. Chima. Mr. Aning should not suffer from that prejudice.

INTEGRITY OF THE ADMINISTRATION OF JUSTICE

[44] Arguably, Ms. Silverman may have been a bit slow in her response; however Mr. Aning has done nothing wrong. It is clear on the materials, that he has taken no steps to delay this matter. On the other hand, it appears to me, that Mr. Chima has fallen below any sensible standard that a reasonably ethical counsel should meet. Allowing Ms. Fotwe to benefit by that conduct would not enhance the integrity of the administration of justice.

COSTS

[45] Counsel for Mr. Aning sought $11,000 in costs. At first, that seemed outlandish. However, there are many factors that make a very high award of costs appropriate. Mr. Aning had served an offer to settle this motion. It included interim support, costs to be paid by him and a schedule moving the matter forward. Faced with what counsel should have seen as unlikely success on this motion, Mr. Chima should have leaped to accept such an offer. Instead, he carried on and was unsuccessful. From a review of the hours and the hourly rate set out in the Bill of Costs, I was satisfied that much of the request was reasonable. Accordingly, for the reasons set out in court, I ordered costs of $7,500 to be paid by the Applicant.

RESULT

[46] Accordingly, the motion was granted as set out above.

Lemon, J.

DATE: June 09, 2014

COURT FILE NO.: FS-12-75302-00
DATE: 2014/06/09

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kathleen Fotwe v. John Aning

BEFORE: Lemon, J

COUNSEL: P. Okoronkwo, for the Applicant
Ravital Khardas, for the Respondent

ENDORSEMENT

Lemon, J

DATE: June 09, 2014