CITATION: G.S.M. v. K.B.J., 2016 ONSC 1920

COURT FILE NO.: FS-15-403346

DATE: 20160317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.S.M., Applicant

AND:

K.B.J., Respondent

BEFORE: Kiteley J.

COUNSEL: Glen A. Cook, for the Applicant

Sukwinder Samra, for the moving party D.J..

HEARD: March 17, 2016

ENDORSEMENT

[1] G.S.M. and K.B.J. were married in February 2004. They have two daughters: H.1 born in […] 2007 and H.2 born on […], 2014. The CAS apprehended H.2 at birth. In June 2014 G.S.M. and H.1 moved out of the matrimonial home where K.B.J. has resided up to the present.

[2] On January 7, 2015, Justice Spence in the Ontario Court of Justice made a finding that both children were in need of protection and, on consent, the children were placed in the care and custody of their father, subject to the supervision of the CAS for a period of 6 months. It appears that the supervision order was extended because the protection application is still before the court with the next appearance in May, 2016.

[3] G.S.M. started the divorce Application on June 12, 2015 on the basis of separation on June 10, 2014. The file contains the affidavit of service of a process server which indicates that K.B.J. was served personally at the former matrimonial home. The affidavit does not indicate the means by which the process server identified the person served.

[4] No Answer and Claim was filed. In an affidavit for divorce dated October 9 and an affidavit for uncontested trial also dated October 9, G.S.M. asked for a divorce and other relief.

[5] Paisley J. granted an order dated October 23, 2015 which contains the following:

(a) divorce was granted, taking effect 31 days later;

(b) applicant have custody of both children and has authority to obtain passports etc without consent of the Respondent;

(c) the Respondent have access in the discretion of the Applicant;

(d) the Applicant may buy out the Respondent’s interest in the matrimonial home at “50% of the market value net encumbrances on the matrimonial home”;

(e) in the alternative, the matrimonial home shall be placed for sale with the net sale proceeds be shared on a 50/50 basis;

(f) pending sale, the Applicant may determine the listing agent and determine the sale price and negotiate all offers of purchase;

(g) the Respondent shall fully co-operate with the sale and allow full access to the home and failing such co-operation, the Applicant be granted exclusive possession of the property pending its sale;

(h) the Applicant may bring a motion on short notice for a writ of possession if the Respondent is not co-operating

(i) an order dispensing with the necessity of the signature or consent of the respondent with respect to any documents required to be signed in order to complete the sale of the premises

(j) an order that the Applicant be appointed the attorney of the Respondent for the sole purpose of signing any and all documents required to be signed by the Respondent to complete the sale of the property.

[6] At the OCJ hearing on December 17, 2015, the CAS was contemplating terminating the protection application. The CAS and the judge were given a copy of the divorce order. The CAS expressed concern about the terms with respect to access. The hearing was adjourned to February 1, 2016 to give the Applicant the opportunity to amend the access provision sof the above order, after consulting with the CAS and mother’s counsel.

[7] D.J. is the nephew of the Respondent. He has brought this motion for an order appointing him Litigation Guardian and for an order setting aside the entirety of the order of Paisley J.

[8] Mr. Cook advises that his client takes the position that the Respondent is not “fully incapacitated” but his client does not oppose the order appointing the Litigation Guardian. His client is opposed to setting aside any part of the order.

[9] Rule 7.03 of the Rules of Civil Procedure provides for the appointment of a litigation guardian for a mentally incapable person. The threshold is a finding that the person is mentally incapable. In the affidavit of Mr. D.J. sworn March 16, 2016, he provided what appears to be a note from a family physician who indicates that K.B.J. is suffering from schizophrenia and due to her condition she is unable to make legal decisions and needs a legal guardian to help her with the divorce procedure. Unfortunately, Dr. Hanna does not say that the Respondent is his patient but counsel asks that I accept that to be the case. I am not prepared to do so.

[10] In the agreed statement of facts in the OCJ proceeding, there are many references to the Respondent and her mental health including information from her psychiatrist. Based on (a) the medical information in the agreed statement of facts, (b) the description of her behavior contained in the agreed statement of facts; (c) the description of her behavior in the evidence of Mr. D.J.; and (d) the acquiescence by the Applicant, I am satisfied that she is a person under disability and she is incapable of representing herself in this proceeding and that Mr. D.J. should be appointed to be her litigation guardian.

[11] I turn to whether the entirety of the order should be set aside. As I indicated to counsel, the circumstances under which the court can set aside an order granting a divorce after the divorce has taken effect are limited. Counsel for Mr. D.J. has not provided authority that those circumstances exist here. I am not persuaded that the granting of the divorce should be set aside.

[12] As for the balance of the order, I take into consideration whether the motion to set aside what is in effect a default judgment was brought promptly; whether there is a plausible explanation for the Respondent’s default; and whether the Respondent has an arguable case on the merits.

[13] According to Mr. D.J., the Respondent did not know about the divorce application and insists that she was never served. The Respondent did know about it on December 17 when it was considered in the OCJ. She expressed a concern in February when the Applicant was coming to the matrimonial home and she thought he was selling it. It was at about that point the Mr. D.J. became involved. Mr. Cook insists that she knew when she was served in June and no later than November when the Applicant was planning the trip to India with the girls and of course in December at the OCJ and waiting until the end of February was not a prompt response. I disagree. Given the circumstances of her disability, Mr. D.J.’s actions in February are prompt.

[14] I do not decide whether she was served in June or not. The explanation that she took no steps until it appeared that the home in which she lived was going to be sold is plausible given her disability.

[15] The record is clear that she has an arguable case on the merits. She was married for 10 years and, even on the evidence of the Applicant, was not capable of looking after the children. She has a claim to assert for spousal support. She also has a claim to an equalization of net family property. The order made that allowed the Applicant to purchase her interest at 50% of the value is unusual and has no safeguards as to how value will be ascertained. The Applicant could obtain a writ of possession and evict her without there being any provision for her support. The access order would leave her having access to her children completely within his discretion. The blanket authority for travel documents would allow the Applicant to remove the children from the jurisdiction and take them to live in India, which had been contemplated as indicated in the OCJ proceedings.

[16] In order to give the Respondent an opportunity to exercise her rights, the entirety of the judgment, excepting only the divorce, must be set aside.

[17] In his submissions, counsel for Mr. D.J. asked that I find that the Applicant had acted in bad faith and had mislead the court as to the Respondent’s health. I do not make such a finding. He did disclose her mental health issues in the Application, in the 35.1 and in his affidavit in support of uncontested trial. He may have provided additional information. He may have taken steps to ensure that she understood the need to respond, such as serve the lawyer who was acting for her in the OCJ proceedings, but that does not constitute bad faith.

ORDER TO GO AS FOLLOWS:

[18] Pursuant to R. 7.03, D.J. is appointed as Litigation Guardian for K.B.J. in this proceeding.

[19] Paragraphs 2 – 10 of the order of Paisley J. dated October 23, 2015 are set aside.

[20] By April 14, 2016, the Litigation Guardian shall serve and file an Answer and Claim, a s. 13.1 financial statement and s.35.1 affidavit.

[21] By April 25, 2016, the Applicant shall serve and file a Reply.

[22] The Applicant shall pay costs of this motion in the amount of $1500 no later than April 25, 2016.

[23] Counsel for the Respondent shall arrange a case conference in May, 2016, before me if I am available.

[24] Counsel may bring a motion on short notice for approval of a settlement before me if I am available.

Kiteley J.

Date: March 17, 2016