SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 101/14
DATE: 2014/12/15
RE: Jennifer Barter, Applicant
AND
Kevin Barter, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Eve Theriault, for the Applicant
Courtney Cottle, for the Respondent
HEARD: December 10, 2014
ENDORSEMENT
Issue
[1] This was a motion to set aside a final order that was obtained by default.
Facts
[2] The Application was issued on February 13, 2014.
[3] The applicant’s lawyer at the time, Matthew Giesinger, swore an Affidavit of Service indicating that “[o]n February 18, 2014, I served Kevin Barter with the following document(s) in this case” and the documents are listed including the Application. He went on to add “I served the document(s) mentioned … by special service”. The Affidavit of Service, however, was devoid of any explanation as to how special service was purported to have been affected. This is despite the form itself having tick boxes and spaces directing the affiant to provide further details.
[4] The applicant subsequently brought a motion without notice dated March 24, 2014 for the sale of the matrimonial home. There was no return date for the motion, but it appears that Mr. Giesinger attended at court to speak to it on April 2, 2014. The court ordered that service of the motion was required. The respondent acknowledges being served with documentation for the motion at his residence in April of 2014, while he was hospitalized in Kingston. He indicates that he failed to deal with it as he was overwhelmed. It is unclear, however, what service on him accomplished by way of notice, as the motion itself had no return date and no Affidavit of Service was filed. Regardless, the motion for sale became moot as the matrimonial home was subsequently lost to the bank, and the motion was never argued or adjudicated.
[5] Also on April 2, 2014, the respondent was administratively noted in default of filing an Answer to the Application. The Application itself was therefore adjourned to April 30, 2014, for a summary trial.
[6] On the summary trial date of April 30, 2014, the respondent did not appear. However, the applicant’s lawyer had not filed the required materials. The summary trial was therefore adjourned to May 14, 2014. The matter was then dealt with by the court in chambers on May 20, 2014, and a final order was made on all the issues, including property, custody/access, and both child and spousal support. The respondent’s evidence is that support was ordered based on an income that far exceeds what he was actually receiving. He also questions the appropriateness of the property orders.
[7] As a result of his military service, the respondent suffers from Post-Traumatic Stress Disorder. He indicates that he was hospitalized on Vancouver Island from approximately February 6 to March 27, 2014, during the time the Application was purportedly served on him. He indicates that he first received notice of the final order on September 19, 2014, when he received a copy of a letter from National Defence indicating that fifty percent of his pension would be garnished. The respondent brought this motion three days later on September 22, 2014. After obtaining an order for substitutional service, he then served this motion on the applicant on September 26, 2014.
[8] The affidavit of the respondent indicates his belief that the Application was served on his seventeen year old daughter Miranda while he was in the hospital on Vancouver Island. Mr. Giesinger subsequently swore an affidavit to refute that assertion, indicating as follows:
“4. I served Kevin Barter with an Application and Financial Statement by special service at Apt. 106-1019 Pembridge Crescent upon Jessica Lindsay Barter who is of age on February 19, 2014.
- I served Kevin Barter by mail with an Application and Financial Statement the same day to confirm service.”
[9] Mr. Giesinger is no longer the applicant’s lawyer. A ‘Notice of Change in Representation’ was signed and served on November 7, 2014.
[10] In response to Mr. Giesinger’s affidavit, the parties’ daughter Jessica Barter filed her own affidavit in which she said,
“2. Prior to seeing Mr. Giesinger in court on October 8, 2014 I had never seen him before.
Mr. Giesinger has never served me documents at the residence of my father, Kevin Barter, and my younger sister, Miranda Barter.
I was advised by my sister, Miranda that she was handed documents by an unidentified male in February 2014. This individual did not ask her name, confirm her residence, or her age.
In February 2014 my father was not at home as he was in hospital for treatment related to his post-traumatic stress disorder (specifically, alcohol treatment and counselling).”
Law
[11] Service of an Application shall be by special service: Rule 8(5) of the Family Law Rules, O. Reg. 114/99, as amended (“Rules”).
[12] The requirements for special service are set out in Rule 6(3). The applicant is relying on Rule 6(3)(d) which reads as follows:
6(3) Special service of a document on a person is carried out by, …
(d) leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address.
[13] As to proof of service, Rule 6(19) says “Service of a document may be proved by, … (b) an affidavit of service (Form 6B)”. Rule 1(9.1) says that “The forms authorized by these rules and set out in the Table of Forms shall be used where applicable and may be adjusted as needed to fit the situation.” As already noted, the original Affidavit of Service had a number of tick boxes that Mr. Giesinger failed to fill in. The relevant ones are reproduced below:
- I carried out special service of the document(s) on the person named in paragraph 1 at (place or address) by:
[ ] leaving a copy in a sealed envelope addressed to the person at the person’s place of residence with (name) who provided me with identification to show that he/she was an adult person residing at the same address and by mailing another copy of the same document(s) on the same or following day to the person named in paragraph 1 at that place of address.
[ ] other. (Specify. See rule 6 for details.)
[14] On the main issue for this motion, the parties agreed with the following statement of law from O’Donnell v. Davis, 2012 ONCJ 36 at para. 16:
In determining whether it is appropriate to set aside a final order, I consider the following:
(a) whether the respondent acted in a timely manner in bringing his motion;
(b) whether the respondent’s material discloses a viable defence;
(c) whether a different outcome would likely have resulted had his material been before the court at the time the order was made;
(d) whether the respondent has acted in good faith; and
(e) whether, in the interests of justice, such an order is appropriate.
Analysis
[15] Looking at the O’Donnell factors, I find that the respondent’s evidence discloses a viable defense most notably on child and spousal support. There would have been a different result had his materials been before the court at the time the final order was made. Regarding the other factors of timeliness, good faith, and the interests of justice, these all turn, in my view, on whether the respondent was properly served with the Application.
[16] Jessica indicated that her under aged sister Miranda told her that she was handed documents by an unidentified male in February of this year. This, of course, is hearsay. However, Jessica was very clear in her evidence that she herself was not handed the Application by Mr. Giesinger. Mr. Giesinger, on the other hand, said that he specifically served her.
[17] The applicant’s lawyer urged me to accept Mr. Giesinger’s account over Jessica’s, given that he is an officer of the court. However, his documentation was, to put it bluntly, quite sloppy for someone in that position. The original Affidavit of Service was incomplete, and left the impression that Mr. Baxter had been served personally, which was not the case. In his follow-up affidavit Mr. Giesinger simply stated, as a conclusion, that he served Jessica Barter. He did not provide any evidence to support that statement. He did not say how he knew it was Jessica. He did not say what, if any, conversation he had with the person he served. While the affidavit was an attempt to clarify the deficiencies in the original Affidavit of Service, it still did not provide any of the details that were required by that form. Most strikingly, in the original Affidavit of Service Mr. Giesinger said that he served Mr. Baxter on February 18, 2014. In his subsequent affidavit he said it was on February 19, 2014. There is no explanation.
[18] I am not satisfied on a balance of probabilities that Mr. Baxter was properly served in February 2014. I accept that he first learned about the final order on September 19, 2014. I therefore find that he has been dealing with his default in good faith given his mental health difficulties. He brought this motion to the court in a timely way upon learning of the previous judicial determination. I find that it would be fair and in the interests of justice to set aside the final order.
Decision
[19] The relief requested by the respondent in paragraphs 1, 2, and 3 of the Notice of Motion at Tab 11 is granted.
[20] The applicant submitted that she has been prejudiced by the delay since last February. She was seeking her costs thrown away in the summary trial process. However, while the respondent perhaps should have made some inquiry when served with the motion to sell the home, it cannot be said that he behaved inappropriately. Further, he was the successful party on this motion, although, as he was asking for an indulgence from the court, he properly did not claim costs. No order as to costs.
Mr. Justice Timothy Minnema
Date: December 15, 2014
COURT FILE NO.: 101/14
DATE: 2014/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jennifer Barter, Applicant
– and –
Kevin Barter, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Eve Thériault, for the Applicant
Courtney Cottle, for the Respondent
endorsement
Mr. Justice Timothy Minnema
Released: December 15, 2014