Kimberley Flowers v. Romeo Flowers, 2015 ONSC 6385

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-15-82801-00
DATE: 2015 10 16

RE: KIMBERLEY FLOWERS V.
ROMEO FLOWERS

BEFORE: LEMON J.

COUNSEL: AMRIT KAUR BHANGU, FOR THE APPLICANT
ROMEO FLOWERS, IN PERSON FOR THE RESPONDENT

HEARD: October 9, 2015

E N D O R S E M E N T

The Issue

1Mr. Flowers moves to set aside the order of Justice Baltman dated August 14, 2015. That order required Mr. Flowers to vacate the matrimonial home, gave exclusive possession to Ms. Flowers and allowed her to sign all documents concerning the sale of the home without the consent of Mr. Flowers. Upon the sale, the net proceeds were to be divided equally between the parties. Finally, Mr. Flowers was ordered to pay costs in the amount of $1213.

Background

2The parties were married July 5, 2003 and separated February 2009. They have two adult children. Ms. Flowers brought her application in February of 2015 seeking a divorce and the sale of the family property and costs.

3Mr. Flowers denies that he was served with that application; however, on September 28, 2015, Bielby J. accepted the affidavit of service. Accordingly, Mr. Flowers is deemed to have been served with the application February 16, 2015.

4Mr. Flowers did not file an answer to the application.

5On April 21, 2015, on an undefended motion, I granted Ms. Flowers’ request for a divorce and ordered that the house be sold. I ordered that the proceeds be divided equally between Mr. and Ms. Flowers.

6The matter came back before the court on August 14, 2015. Mr. Flowers denies that he was served with that notice of motion. He did not appear and Justice Baltman ordered that Mr. Flowers was to vacate the matrimonial home and remove all of his personal contents and furniture from the home by September 14, 2015. Ms. Flowers was to have exclusive possession of the home commencing September 14, 2015. As set out above, she was authorized to sign all documentation concerning the sale of the home without the consent of Mr. Flowers. The net proceeds of sale were to be the divided equally and Mr. Flowers was to pay costs of $1213.

Positions of the parties

7Mr. Flowers first brought his motion returnable September 25, 2015. He wished to set aside my divorce order of April 21, 2015 and the order of Justice Baltman dated August 14, 2015. Mr. Flowers denied that he was served with the original application or with the notice of motion. He wished an order granting him exclusive possession of the home and allowing him to file an answer by October 15, 2015.

8Justice Bielby has disposed of the service of the application and adjourned the motions to allow Ms. Flowers to provide further evidence relating to service of the August motion.

9In response, Ms. Flowers says that Mr. Flowers was properly served and seeks an order for additional costs from the proceeds of sale as a result of outstanding liens against the house caused by Mr. Flowers.

Authorities

10Section 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.

11In 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:

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

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

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.]

12In Mountain View Far Ms. 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,.

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.:

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. [References removed]

Analysis

13Rule 10 (5) and Rule 1 (8.4) of the Family Law Rules sets out the effect if an answer is not filed. In short, the party who does not file an answer, is not entitled to any further notice of steps in the case. Mr. Flowers did not file an answer even though he was properly served as found by Justice Bielby. Accordingly, whether he was served with the August motion or not, the order of Justice Baltman should stand.

14Further, given that he was properly served with the application, the divorce order of April 21, 2015 is properly made. Accordingly, the house was to be sold forthwith and the proceeds of sale were to be shared. That order would stand even if the August order were set aside.

15If service were necessary to support the August order, I can find on a balance of probabilities that service had occurred.

16Mr. Flowers does not deny that he was residing at the matrimonial home. He simply points out that the UPS document relied upon by Ms. Flowers does not confirm service upon him. Ms. Flowers sets out in her materials that Ms. Bhangu has written to Mr. Flowers a number of times to the matrimonial home but Mr. Flowers has not responded. He has not denied receiving those letters. It is clear from the documentation provided, that three separate attempts were made to serve Mr. Flowers at the matrimonial home but all three were rejected by Mr. Flowers. On that evidence, I am satisfied that he simply chose to reject the documents even though they came to his attention. I am satisfied on a balance of probabilities that he was wilfully blind to that service. That results in him being served.

17On that basis, I cannot find that there was fraud, mistake or no notice brought to the attention of Mr. Flowers. While he was not present when the order was made, the notice was adequate and there is no satisfactory reason that he was not present.

18In reviewing the five-part test set out in Mountain View, it appears that Mr. Flowers brought his motion very quickly after he was evicted on September 15.

19However, given that I have found that he was served, Mr. Flowers has not provided a plausible excuse for his failure to respond to the application or the motion.

20The only claim, other than a divorce, is for the sale of the jointly owned home. Mr. Flowers has not put forward any reason why it should not be sold and the proceeds divided equally. He does not appear to have any defence on the merits.

21There will not be any prejudice to Mr. Flowers. He is already out of the house. He will have his share of the proceeds of sale.

22There will be prejudice to both parties if the sale, which is to close October 22, is not completed.

23Given Mr. Flowers’ failure to properly respond to the documentation served upon him, the integrity of the administration of justice would be damaged if he were allowed, at this late date, to defend the application.

24Mr. Flowers’ motion is dismissed.

25On the materials filed by Ms. Flowers, I am satisfied that out of the proceeds of sale, she should receive an additional $1211.88 from Mr. Flowers’ share of the proceeds based on the charges that have been placed against the home as a result of his conduct. The costs ordered by Baltman J. should also be paid to Ms. Flowers from Mr. Flowers’ share of the proceeds.

26Mr. Flowers’ share of the proceeds of sale shall be held in trust by the lawyer completing the sale pending the resolution of the costs issue below.

Costs

27If the parties cannot agree on costs, written submissions may be made to me. Ms. Flowers shall make her submissions within the next 15 days and Mr. Flowers shall respond 15 days thereafter. Each submission shall be no more than three pages not including any bills of cost or offers to settle.

Lemon J.