SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-14-2065
DATE: 2015/10/01

RE: LISA ANN GIBSON, Applicant

AND

ROBERT ROY ULLRICH, Respondent

BEFORE: Shelston J.

COUNSEL: Meredith Holmes, counsel for the Applicant

Robert Roy Ullrich, Self-represented

HEARD: September 15, 2015 (at Ottawa)

ENDORSEMENT

[1] This is a motion brought by the respondent to set aside the default judgment of Justice Kershman dated May 21, 2015.

Background

[2] The parties were married on August 12, 2000, and separated on September 28, 2012. There are two children of the marriage, namely, Callum Ullrich, born May 24, 2001 and Livia Ullrich, born February 7, 2004.

[3] Since the separation, the children resided with the applicant and the respondent had access including but not limited to every second Friday to Monday morning and every Wednesday after school to Thursday morning. Further, the respondent was paying $2,600 a month in combined child and spousal support.

[4] The parties attempted to negotiate a settlement of the issues until April 2014 when the respondent terminated the retainer of his counsel. There were no further communications from the applicant or her counsel to the respondent from April 2014 to the receipt of the default judgment on June 8, 2015.

[5] By application issued on September 15, 2014 the applicant sought various claims for relief including but not limited to a divorce, child support, spousal support, custody of the children, equalization of the net family property, sale of the family property, life insurance designation, pre-judgment interest and costs.

[6] On September 20, 22, 27 and 28, 2014 a process server attempted to serve the respondent with the pleadings at his residence but received no answer at the front door. There is no indication if the process server knocked on the door or rang the doorbell, for how long or how many times at each visit. Three of the occasions were on the weekend. The process server indicates that on all four occasions she called the respondent and because the windows were open she could hear the phone ringing inside the house.

[7] On October 28, 2014, Master MacLeod granted the applicant’s motion for substituted service to allow service by mailing the respondent at his residence with a copy of the pleadings by ordinary mail and by leaving a copy at his residence.

[8] On November 6, 2014, all of the pleadings including the order for substituted service were mailed to the respondent and were dropped off at his residence by a process server.

[9] The respondent never filed any responding material and received no further notice from the court and had no further communication with the applicant’s counsel.

[10] Despite the parties exchanging 253 texts and 38 e-mails since October 24, 2014, none of the e-mails or texts refers to the court proceedings. The e-mail communications between the parties make no mention of any court proceedings. Further, after proceedings were commenced, the parties attended parent teacher interviews and community activities together and nothing was ever mentioned.

[11] The applicant’s reply affidavit does not deny the existence of texts and e-mails nor explained why the process server was instructed not to attempt to serve the respondent on Wednesdays when he had the children.

[12] The applicant moved for a default judgment on May 21, 2015 and in support filed an affidavit for an uncontested trial dated March 5, 2015.

The Default Judgment

[13] On May 21, 2015, Justice Kershman granted the following relief:

2. Custody:

That Lisa Ann Gibson and Robert Roy Ullrich shall have final joint custody of the children.

3. Access:

That Robert Roy Ullrich shall have reasonable access on reasonable notice including but not limited to every other weekend from 3:00 p.m. on Friday until 8:25 a.m. on Monday or Tuesday, if Monday is a statutory holiday, starting on May 21, 2015.

School Spring Break

(a) Whichever parent has the children for the start of the school spring break keeps the children from Friday after school until Wednesday at noon and the other parent will have the children from Wednesday at noon until the children return to school immediately following the break.

Easter Weekend

(b) The children will stay with Lisa every year from when the children leave school on the Thursday before the Easter weekend until the children return to school on the following Tuesday.

Mother’s Day

(c) If Lisa is not otherwise with the children on Mother’s Day, the children will stay with Robert from Friday after school until Saturday evening at 8:30 p.m. of the Mother’s Day weekend and with Lisa from Saturday evening at 8:30 p.m. until their return to school on Monday.

Father’s Day

(d) If Robert is not otherwise with the children on Father’s Day, the children will stay with Lisa from Friday after school until Saturday evening at 8:30 p.m. of the Father’s Day weekend and with Robert from Saturday evening at 8:30 p.m. until their return to school on Monday.

Summer Vacation

(e) The children will stay with each parent for two (2) weeks during the children’s summer school vacation. Robert and Lisa will decide together as to whether the weeks chosen in their respective case shall be “consecutive” or not. Robert and Lisa will advise each other by April 1st of their chosen weeks, with Robert to have first choice in odd-numbered years and Lisa to have first choice in even-numbered years. In making plans, each parent will take into account the children’s camp and other scheduled activities. At all other times during the summer months the regular access schedule will remain in effect.

Thanksgiving Weekend

(f) The children will stay with Robert on Thanksgiving weekend every year, from when the children leave school on the Friday before Thanksgiving until their return to school on the following Tuesday.

Halloween

(g) Lisa will have the children for Halloween in odd-numbered years and Robert will have them in even-numbered years, from 5:30 p.m. until 8:30 p.m. The parent who has the children for Halloween will be responsible for their costumes.

Christmas

(h) The parties will share equally the children’s Christmas school break. In even-numbered years, the children will reside with Lisa starting at 3:00 p.m. on the last day of school in December and ending at 2:00 p.m. on December 25. The children will reside with Robert starting at 2:00 p.m. on December 25 and ending on January 1 at 2:00 p.m., with the regular access schedule resuming when the children return to Lisa, following the agreement requested in 2012. In odd-numbered years, this schedule shall reverse.

Child’s Birthday

(i) The children shall spend their birthday in accordance with the regular schedule.

4. Child Support:

Robert Roy Ullrich shall pay Lisa Ann Gibson child support in the amount of $1,605 per month starting on June 1, 2015.

5. Spousal Support:

Robert Roy Ullrich shall pay Lisa Ann Gibson spousal support in the amount of $993 per month starting June 1, 2015.

The spousal support shall be indexed and changed annually according to the indexing factor in subsection 34(6) of the Family Law Act.

10. Property:

(a) Robert Roy Ullrich shall pay Lisa Ann Gibson an equalization payment of $82,075.08 by way of RRSP rollover. Robert Roy Ullrich shall satisfy the payment of the equalization obligation by transferring to Lisa Ann Gibson $82,075.08 of his RRSP.

(b) The matrimonial home, municipally known as 46 Tamblyn Crescent in Ottawa, Ontario vests solely in Robert Roy Ullrich’s name and Robert Roy Ullrich shall obtain a release of Lisa Ann Gibson from all mortgage obligations and indemnify Lisa Ann Gibson if he cannot obtain her release from the mortgage obligations.

(c) This order shall be suspended for a period of 60 days from this date to give an opportunity to Robert Roy Ullrich to satisfy the equalization payment, if payment is not made within the said period of 60 days, the order for the RRSP rollover shall become operative, and $82,075.08 of Robert Roy Ullrich’s RRSP shall be transferred to Lisa Ann Gibson.

12. Other Matters:

(a) Robert Roy Ullrich shall pay to Lisa Ann Gibson 75% of the children’s special and extraordinary expenses as they become due, which is proportionate to the parties’ incomes.

(b) Robert Roy Ullrich shall disclose to Lisa Ann Gibson his income for the previous year on June 1 in each year in accordance with Section 21 of the Federal Child Support Guidelines, including copies of his most recent income tax return, together with all schedules, attachments and slips, and any notice of assessment or reassessment provided by the Canada Revenue Agency.

(c) Robert Roy Ullrich shall designate Lisa Ann Gibson as the irrevocable beneficiary in trust of his Sunlife Financial Life Insurance policy, for the purpose of securing child and/or spousal support after which time she is no longer to be designated as beneficiary.

(d) Child support shall be reviewed annually and adjusted by July 1 each year.

(e) Robert Roy Ullrich shall not harass, molest or annoy Lisa Ann Gibson.

(f) Upon request and receipt of an original court order or certified copy of the order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the following children, Callum Ullrich, born May 24, 2001, and Livia Ullrich, born February 7, 2004 may be, shall locate, apprehend, and deliver the children to Lisa Ann Gibson at 3 Durbin Court, in Kanata, Ontario.

(g) For the purpose of locating and apprehending the children, a member of a police force may enter and search any place where he or she has reasonable and probably grounds to believe that the children may be, with any such assistance and force as are reasonable in the circumstances and such entry or search may be made at any time.

(h) The orders set out in paragraphs 12 (e), (f) and (g) shall expire within one year of the date of the order.

13. Costs:

Costs shall be paid by Robert Roy Ullrich to Lisa Ann Gibson fixed at $3,650.

Respondent’s Actions

[14] On June 8, 2015, the respondent received a letter from the applicant’s counsel providing him with a copy of the default judgment issued by Justice Kershman on May 21, 2015. His evidence is that he was unaware that proceedings had been commenced and if he had known he would have defended the action and would have sought equal time with his children.

[15] He immediately took action. Four days later on June 12, 2015, the respondent prepared and served this motion to set aside the default judgment returnable on July 6, 2015. On that date Justice Kershman was sitting and decided that he should not hear a motion to set aside his default judgment and the motion was rescheduled to September 15, 2015.

[16] The applicant opposes the motion on the basis that the respondent was served in accordance with the order of the Master and that the respondent was aware of the action. Further that if the pleadings are re-opened that the actual equalization payment would be higher and in fact $111,119.

[17] The respondent states that he is being prejudiced as a result of the default judgment as he was unable to defend the claims made by the applicant and advance his own claims on the following issues:

Custody and Access

(a) The respondent sought equal time with the two children since separation. Currently he has access to the children including every second weekend and every Wednesday. As a result of the judgment his time with the children has not changed and he has been denied the opportunity to advance his claim for equal time.

Spousal and Child Support

(b) The respondent disagrees with the child and spousal support awards. His position is that the quantum of spousal support would change based on his argument that an income should be imputed to the applicant. Further if the imputation argument was successful, the percentage sharing of section 7 expenses would change and if he was successful on obtaining equal time, table child support may change based on a shared custody situation.

Equalization

(c) The respondent disagrees with the equalization calculation. His position is that the Nortel pension should have been taken out of the equalization calculation until the Nortel bankruptcy was settled and that the notional tax rate on the RRSP was incorrect.

Costs

(d) The respondent indicates that in any proceeding he would have been seeking his legal fees that he incurred to date.

Legal test to be met by the respondent (the moving party)

[18] In moving to set aside the default judgment there are three issues that must be determined by the court in exercising its discretion:

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; and

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 as set out in Page-Cole v. Cole, 2009 57152 (ON SC), 2009 CarswellOnt 6373 (Ont. S.C.J.) and Lenshis v. Rencarthi, 1992 CarswellOnt 345 (Ont. Gen. Div.) aff’d 1996 CarswellOnt 330 (Ont. C.A.)

[19] The Ontario Court of Appeal in Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 held that “the test is disjunctive however the Court is required to consider each criteria in its assessment, contextually conducted, of how to best balance the interests of the parties.”

Analysis

[20] The application of law to the facts of this case convince me that the default judgment should be set aside based on the following:

(a) Within four days of becoming aware of the default judgment, the respondent moved to set aside the default judgment. Consequently, he moved as soon as possible following the discovery of the judgment to seek an order setting it aside.

(b) I accept that the respondent was unaware of the proceedings and that his default is satisfactorily explained. He was attempting to resolve the issues until April 2014 and it makes no sense that once served with any court application that he would ignore the documents when the custody of his children was at stake. The respondent does not indicate that he was home when the process server attended. He explained that he works the midnight to 8 a.m. shift Monday to Friday and sleeps during the day. Further, even though he had the children every Wednesday, the process server was instructed not to attend on Wednesdays to effect service. Further, I accept that for some reason the respondent never received the mailed documents or the documents left by the bailiff.

(c) Based on the evidence before me the respondent has provided sufficient evidence to establish there is at the very least an arguable case to present on the merits given there are issues that must be litigated including the children’s best interests.

[21] For reasons stated above, I order:

1. The judgment of the Honourable Justice Kershman dated May 21, 2015 is hereby set aside.

2. The respondent shall have until October 16, 2015 to serve and file an Answer and Claim, financial statement and Form 35 affidavit.

3. The applicant shall have until October 30, 2015 to serve and file any Reply.

4. The parties shall schedule a Case Conference forthwith.

5. There shall be no order as to costs.

Shelston J.

Released: October 1, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Lisa Ann Gibson, Applicant

AND

Robert Roy Ullrich, Respondent

BEFORE: Shelston J.

COUNSEL: Meredith Holmes, counsel for the Applicant

Robert Roy Ullrich, Self-Represented

ENDORSEMENT

Shelston J.

Released: October 1, 2015