ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-12-74897-00
Date: 2014 12 19

B E T W E E N:

Linda Mohammed

Mr. F. Adekusibe, for the Applicant

Applicant

• and -

Ricardo Mohammed

K. Cunningham, for the Respondent

Respondent

HEARD: December 11, 2014

ENDORSEMENT

Lemon J.

The Issue

1Mr. Mohammed, the respondent, seeks an order:

(a) staying the Sheriff of the Regional Municipality of Peel from taking any steps to enforce a Notice to Vacate and from taking possession of the matrimonial home and its contents.

(b) setting aside the order of Justice Ricchetti wherein His Honour directed the Sheriff of the Regional Municipality of Peel to enter and take possession of the property and contents.

(c) setting aside of all other orders and endorsements in this proceeding including but not limited to:

i) the Final Order of the Honourable Mr. Justice André dated September 8, 2014.

ii) the Order of Justice Bielby dated June 24, 2014;

iii) the Order of Justice Snowie dated September 10, 2012.

(d) granting him leave to file his Answer-Claim within 30 days.

2In short, he seeks to set aside a default judgment against him. After hearing submissions from the parties, I advised the parties that I would dismiss much of the motion for reasons to follow. These are those reasons.

Background

3The important details of the factual dispute are set out in the parties’ affidavits. The question to be determined is: Was Mr. Mohammed properly served with the court process?

4Mr. Mohammed’s affidavit of November 13, 2014, sets out that he and Ms. Mohammed were married on July 25, 1998. There are no children born of the relationship but he has three adult sons from a former relationship.

5In particular he states:

a) Linda and I separated on April 24, 2010. I came home one day to find her moving out her belongings with the help of her family. She said that she would return but it never happened. We have lived separate and apart since that time. There is no possibility of reconciliation.

b) I had absolutely no knowledge that Linda had commenced an application. I was never served.

c) I have been advised by my solicitor, Ms. Karen Cunningham, and verily believe it to be true that an Application was issued on May 12, 2010. I was never served with this Application nor was I served with any court documents or court orders/endorsements.

d) During the evening of Friday November 7, 2014 my son Richard Mohammed (“Richard”) age 25, came home to find a Notice to Vacate taped to the front door of my matrimonial home municipally known as 4 Calderstone Road, Brampton, Ontario L6P 2A4. I was in Niagara Falls at the time. As it was late, I decided to spend the night in Niagara Falls and return home the next day.

e) As it was the weekend, I had to wait until Monday morning (November 10th) to call the number on the notice. I tried to explain to the person I was speaking to that I was not a tenant but an owner but the person would not listen. The person told me that they could not help and that I would have to see a lawyer.

f) I then contacted Ms. Cunningham’s law office and scheduled an appointment to see her the very next day (Tuesday November 11th). My son Richard accompanied me to the appointment.

g) We then went to the court house. Richard requested a copy of the court orders/endorsements. It was only then that I became aware that Linda had obtained a number of orders against me. I had absolutely no knowledge that any of the orders had been issued.

h) I have spoken with my son Richard who was living with me at the relevant times and he has advised and verily believe it to be true that he has never before seen any of these orders or any court documents.

6In response, Ms. Mohammed sets out in her affidavit that:

a) The respondent has been living in the matrimonial home situate at 4 Calderstone Road, Brampton, Ontario since I moved out of the home on June 2, 2010.

b) In January 2012 I retained Shana Maiato of RZCD Law Firm LLP as my Counsel to act for me as my Family Law Counsel.

c) I was advised by Shana Maiato, whom I believe to be true that on January 12, 2012 she wrote a letter to the Respondent inviting him to negotiate settlement of the family law issues occasioned by our separation. Ms. Shana Maiato advised me that she mailed the letter to the Respondent at 4 Calderstone Road, Brampton, Ontario, L6P 2A4.

d) I am advised by Ms. Maiato that she gave the Respondent till February 1, 2012 to respond to the letter mentioned in paragraph 14 above. Ms. Maiato therefore sent another letter to the Respondent on February 9, 2012 by regular and registered mail encouraging him to respond to my invitation to negotiate settlement of the family law issues and she warned him that if he chose to ignore her correspondence he did so at his peril. Ms. Maiato gave the Respondent ten days to respond to the letter and that if he failed to respond I would commence legal proceedings.

e) I am aware that none of the letters mailed to the Respondent was returned undelivered. Therefore, on May 4, 2012 Shana Maiato filed an Application (Form 8) for divorce, spousal support, equalization of net family properties, etc. at the court registry.

f) I was advised by Shana Maiato whom I believe to be true that the Continuing Record including the Application (Form 8), my Financial Statement Form 13.1, the Respondent’s Mandatory Information Program notice, and a blank Answer Form were served on the Respondent on May 27, 2012. The cover letter listed the documents to be served on the Respondent and also encouraged the Respondent to discuss settlement of the issues. The Respondent was eventually served on May 27, 2012.

g) I am advised by Ms. Maiato that after the Respondent refused to respond to any of the previous correspondence including his refusal to respond to the Application served on him she mailed another letter dated July 16, 2012 to the Respondent at the same address requesting him to file his answer and financial statement.

h) Ms. Shana Maiato (my previous Counsel) advised me that sometime in September 2012, the Respondent having failed to respond to her previous correspondence, the Application served on him, and failed to serve and file his Answer, and financial statement and disclosure, she scheduled a case conference for September 10, 2012. Ms. Maiato served the notice of case conference on the Respondent herself by mailing a copy to him at the same address at 4 Calderstone Road, Brampton, Ontario, L6P 2A4.

i) The Respondent refused to respond to any of the correspondence.

j) At the case conference of September 10, 2012, the Honourable Justice Snowie ordered the Respondent to produce the disclosure listed in the order.

k) Ms. Shana Maiato advised me and I believe her to be true that she did not receive the disclosure ordered by Justice Snowie from the Respondent.

l) I could not pursue the matter in court after the case conference held on September 10, 2012 for financial reason.

m) Sometime in January 2014 I resumed the prosecution of my Application against the Respondent by engaging the service of Fola Adekusibe, who is my current Counsel.

n) I am advised by my Counsel, Fola Adekusibe, that his office prepared and served a Notice of Change of Counsel on the Respondent on March 11, 2014 by mail sent to the same address at 4 Calderstone Road, Brampton, Ontario. L6P 2A4.

o) I am advised by my Counsel. Fola Adekusibe, that he scheduled a case conference for June 24, 2014 at 10am. My Counsel served my case conference brief on the Respondent.

p) Although the Respondent was served with the notice of the case conference scheduled for June 24, 2014 he refused to attend the conference. The Honourable Mr. Justice Bielby found the Respondent in default and noted him in default.

q) On September 8, 2014 I brought a motion for final order in this matter and the Honourable Justice Andre granted my motion.

[I have deleted irrelevant statements and references to the various documents referred to as exhibits]

7The affidavit of service of the application is sworn May 29, 2012. There, the process server swears that on May 27, 2012 he served Mr. Mohammed with the relevant documents at 4 Calderstone Road, Brampton, “by leaving a copy in a sealed envelope addressed to the person at the person’s place of residence with an adult male who refused to provide his name, who provided me with identification to show that he/she was an adult person residing at the same address [sic] and by mailing another copy of the same document on the same or following day to Mr. Mohammed”.

8In reply, Mr. Mohammed deposes that:

a) The Affidavit of Service does not mention that I was specifically served, only that an envelope was left with an adult male who refused to provide his name. My son Richard was living with me at the time (and still does), but he was not served with anything. I have spoken to Richard and he is certain that no one handed him an envelope. Also, my nephew Steven Mohammed was staying with me at the time and if he received anything he would have told me. The only other male having access to my home is my brother Terrence who has a key and he can come and go at any time he likes. Terrence would have told me if anyone had given him an envelope.

b) I was also going through depression (as diagnosed by my doctor). My marriage had broken up and I was facing criminal charges which I eventually pled guilty to (even though I did not do the things Linda accused me of). At the time, I simply wanted to end the nightmare and given the options I was faced with at the time, I plead guilty which was the worst thing I could every [sic] have done because it not only has affected me but also my son Richard whose application to the police force was denied following a background check.

c) In any event, with these events happening in my life, I was spending most of my time at the casino or at our trailer in Proton Township near Shelbourne, Ontario. I would occasionally check in to see how Richard was doing, but I was not spending much time at the matrimonial home.

d) I also never picked up the mail. If anything came to the house it is tossed in a pile and eventually was thrown out.

Authorities

9Rule 6 of the Family Law Rules sets out that service of an application is carried out, among other ways, by 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. Proof of service may be shown by an affidavit of service such as filed in this case.

10In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 at paras. 47 - 51, Gillese JA. set 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, 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, 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.

11That case was a civil decision but I see no reason that these principles should not be applied to a family law case.

Analysis

12I am satisfied that Mr. Mohammed moved as quickly as possible after he received notice of the Sheriff attempting to evict him from the property.

13However, there is no plausible explanation set out to show why he failed to respond. Although he is clear that his son did not tell him about these documents, he has not followed up with the other two individuals who may have been the person served. In any event, his affidavits show that he simply ignored his mail. I do not accept that the court should ignore the rules of service when an individual simply ignores the potential process.

14I do not believe that Mr. Mohammed has a good defence to many of the various orders.

15In September of 2012, Justice Snowie ordered him to provide the usual comprehensive financial disclosure that would be necessary in any family law proceeding dealing with support and division of property. Indeed, his counsel, at the motion, acknowledged that was so.

16Justice Bielby found Mr. Mohammed in default and ordered him to pay $1,000 in costs. Again, Mr. Mohammed’s decision to ignore what might be arriving in his mail caused Ms. Mohammed considerable wasted expense. A costs order of $1,000 can be expected.

17Finally, Justice André ordered Ms. Mohammed to have exclusive possession of the property and for a sale under her direction. Justice André did not determine the equalization payment. Ms. Mohammed seeks spousal support in her application and her counsel confirms that he wishes to proceed with that claim. Justice Andre made no order with respect to support.

18Mr. Mohammed’s counsel was concerned that once the property is sold, Mr. Mohammed will not be able to obtain satisfaction on any equalization claim he might have. However, without his financial disclosure, I do not know if he has an equalization claim. Further, simply because the house is sold, does not mean that Ms. Mohammed has an unfettered claim to the proceeds. There is still an equalization claim to be determined.

19I consider the Peterbilt factors together.

20If Mr. Mohammed is unable to respond to the application, he will, of course, be prejudiced. If all of the orders are set aside, Ms. Mohammed will have been put to wasted time and expense on this claim. It may be that, in reality, Mr. Mohammed has not been aware of the proceeding; however, Ms. Mohammed has complied with the service rules. The effect of Mr. Mohammed’s decision to ignore his mail for two years should not be forced on Ms. Mohammed. Starting the process over despite compliance with the rules of service would damage the integrity of the administration of justice.

21Given that Ms. Mohammed wishes to continue with her support claim, Mr. Mohammed should be entitled to respond to that claim.

22Balancing those factors, I am prepared to set aside Justice Bielby’s order that noted Mr. Mohammed in default. Mr. Mohammed now realizes that he must move expeditiously to protect his rights and obligations; he will be able to take the necessary steps to protect whatever interest he may have in the proceeds of sale.

23Ms. Mohammed shall comply with her disclosure requirements and paragraph 11 of Justice Andre’s order is set aside.

24I therefore grant leave to Mr. Mohammed to file his Answer within 60 days. That Answer shall be served and filed along with complete compliance with Justice Snowie’s order and Justice Bielby’s order for costs.

25I do not, however, set aside Justice Ricchetti’s or Justice Andre’s order. Ms. Mohammed wishes to sell the house and obtain her interest in it. She should not be further delayed in that effort. In light of these circumstances, the Sheriff’s actions shall be stayed until February 1st, 2015, in order to allow Mr. Mohammed to make arrangements for a new residence.

Costs

26At the motion, I received submissions with respect to costs. As I said then, costs are fixed in the amount of $1,500, payable to Ms. Mohammed at the completion of this action or other resolution.

Lemon J.