Court File and Parties

Court File No.: 149/15 Date: 2017-06-29 Superior Court of Justice - Ontario

Re: Kelly Ann La Pointe (Applicant) And: Andrew Michael Barclay (Respondent)

Before: Justice R. Raikes

Counsel: Julie Lee, for the applicant Respondent self-represented

Heard: June 28, 2017

Endorsement

[1] The Respondent moves to set aside the final order of Howard J. dated June 16, 2017 by which he ordered sole custody to the Applicant mother with reasonable access to the Respondent, permitted Ms. LaPointe to relocate to Windsor, Ontario, and fixed child support payable in the sum of $472 monthly starting March 1, 2017 and arrears of child support in the sum of $1,888 as of June 1, 2017.

[2] The order of Justice Howard was made at a summary hearing at which the Respondent was not present. He was previously noted in default on March 22, 2017 by Henderson J.

[3] By way of background, the Applicant brought an urgent motion returnable January 4, 2017. That motion was to compel the Respondent to return the child to the mother’s care. The motion was brought without notice which is to say that it was not formally served on the Respondent. Nevertheless, Applicant’s counsel sent the material to an email address known to be used by the Respondent.

[4] Upon receipt of the motion material, the Respondent returned the child, and attended the motion on January 4, 2017. He indicated on this motion that his attendance on January 4 was obtained by “trickery”.

[5] On January 4, 2017, the Respondent asked for and was granted on consent a 60 day adjournment in order to respond to the application and motion. McSorley J. ordered on an interim without prejudice basis that the primary residence of the child would be with the Applicant, she could not move the child’s residence from London pending further order of the court, and the application and motion return dates were adjourned to March 7, 2017 to be spoken to.

[6] The Respondent contends that he got angry on January 4, 2017 and left before the matter was finished. The endorsement does not reflect that contention and I find he did not storm out of the courtroom as he indicated in oral argument.

[7] On February 2, 2017, the Applicant obtained an order for substituted service from Justice Henderson. The Applicant sought that order because she could not get the Respondent to provide an address for service. The order permitted service by email at the previously used email address and by ordinary mail at his last known address.

[8] The Applicant served the Respondent as permitted by the order for substituted service on February 6, 2017. The Respondent did not attend when the matter came before the court on March 7, 2017.

[9] On March 7, Justice Korpan set a case conference for March 22, 2017. She also indicated that if the Respondent did not file his response within 30 days, it would be up to the judge on March 22 to determine whether he will entertain a request for a final order on that date.

[10] As indicated, an order was made noting the Respondent in default on March 22, 2017 at the case conference which he also did not attend. On that date, the matter was adjourned to a summary hearing on June 16, 2017.

[11] In advance of the summary hearing, the Applicant tried to bring a without notice motion to compel the Respondent’s (former) employers to provide a financial information as to his earnings. The motion was refused because the employers were not served but when they were contacted, the employers gave up the requested documentation which was made an exhibit at the summary hearing.

[12] Despite the extension of time given by McSorley J. at the Respondent’s request, he filed nothing with the court. It appears that he was frustrated or angry and decided to ignore the deadline set.

[13] He now moves to set aside the order on the basis that: a) He was not served with the material – it was sent to an incorrect address. The Applicant knew and should have sent the material to his parents’ address; b) He has been unemployed since November, 2016 and is receiving only unemployment insurance; c) He wants much greater access to his daughter; and d) Had he known of the return dates for the motions etc., he would have attended.

[14] The law with respect to setting aside a default judgment on a summary hearing is succinctly stated by Braid J. in McDonald v. McDonald, 2015 ONSC 2605 at paras. 46-48 as follows:

[46] The Family Law Rules do not contain a specific provision for Motions to set aside default Orders. It has been held that, in matters of family law, the Court may proceed on the basis of Rule 19.08 of the Rules of Civil Procedure, which permits a default Judgment to be set aside on such terms as are just: see Gray v. Rizzi 2010 ONSC 2858, [2010] O.J. No. 4021 (Ont. S.C.J.); and Bargiel v. Mainville [2012] O.J. No. 6028 (ON. S.C.J.).

[47] The language of Rule 19.08 is permissive, and this Court has discretion to grant or refuse the relief sought. This Court must determine whether the interests of justice favour granting the Order setting aside the default Judgment, taking into account three factors; i Whether the Motion was brought promptly after the Respondent learned of the default Judgment; ii Whether there is a plausible explanation for the Respondent’s default; and iii Whether the facts establish that the Respondent has an arguable case on the merits. Bargiel v. Mainville, supra; Page-Cole v. Cole, [2009] O.J. No. 4386 (Ont. S.C.J.).

[48] The parties agree that this three-part test is the one to be applied in the case before the Court. The exercise of discretion requires a weighing of the three factors whilst balancing the interests of the parties and examining the effect of any Court Order on the overall integrity of the administration of justice. A contextual approach is required: see Mountan View Farms Ltd. v. McQueen 2014 ONCA 194; D’Alessio v. D’Alessio [2010] O.J. No. 92 (Ont. S.C.J.).

[15] It is undisputed that the Respondent has moved promptly upon learning of the order of Howard J. dated June 16, 2017.

[16] However, the explanation offered for his default fails miserably. He knew he had 60 days to file his responding materials and did not. He took no steps to extend that deadline when it passed. He ignored emails sent to him at the same email address that garnered his attendance on January 4, 2017. He offers no plausible excuse for his failure to act conscientiously knowing he was a party to a proceeding before the court.

[17] Further, the affidavit evidence filed for this motion does little to establish even a tenuous chance of success on any issue save that of child support. He has not file a draft Answer, a draft Financial Statement, nor does his affidavit provide the details one would reasonably expect to show an arguable claim. Even allowing for the fact that he is self-represented, the affidavit evidence falls far short of what is required to meet this branch of the test.

[18] Counsel for the Applicant offers that the order for payment of child support be suspended for 30 days to permit the Respondent to file his Financial Statement and supporting documents to evidence his lack of employment, eg. a statement showing continued receipt of benefits. If he does, that part of the order will be set aside on consent. If he fails to do so, the order remains in force.

[19] The proposal made by the Applicant’s counsel is generous – more than the Respondent is entitled to given the clear inadequacy of the materials filed for this motion.

[20] I order as follows: a) On consent, the Respondent has until 4 PM on Friday, July 28, 2017 to serve and file with the court a sworn Financial Statement, a copy of his 2016 Income Tax Return with supporting documents, his Notice of Assessment for his 2016 income tax (if received) and the most recent statement of monies paid for unemployment benefits or a pay-stub if employed; b) The obligation to pay child support including arrears between now and July 28, 2017 is temporarily suspended; c) If the documents required in (a) above are not served and filed by 4 PM on July 28, 2017, the order of Howard J as it relates to child support shall continue and any amount accrued between now and July 28, 2017 shall be added to what is owed; d) If the documents required in (a) above are served and filed in a timely manner, the issue of child support shall be adjourned to Tuesday, August 8, 2017 at 10 AM to be spoken to; e) Subject to paras. (a) – (d) above, the Respondent’s motion is dismissed.

[21] If the parties cannot agree on costs, they may make written submissions not exceeding 2 pages within 15 days.

“Justice R. Raikes” Justice R. Raikes

Date: June 29, 2017