OSHAWA COURT FILE NO.: FC-12-2416 DATE: 20160729

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

SYBIL HINDS Applicant

— and —

CARLTON ROY PEART Respondent

COUNSEL: Lyle C. Belkin, for the Applicant Jerald J.D. MacKenzie, for the Respondent

HEARD: July 28, 2016

TIMMS J.

ENDORSEMENT

[1] The respondent has brought a motion seeking to set aside a divorce judgment dated February 19, 2013. In that same motion he sought an order for the equalization of the parties’ net family properties - obviously that matter could not proceed by way of a motion.

[2] I do not intend to examine the issue of whether subrule 25(19) of the Family Law Rules, or rule 19.08 of the Rules of Civil Procedure, applies. Having gone down that road before, I leave that to better minds than my own.

[3] It is clear that the respondent was in fact not served with a divorce application on December 19, 2012, as was set out in the affidavit of service of one Alicia Lynn Gordon dated January 31, 2013. That affidavit is patently false. However, there is no evidence that the applicant herself knew that the affidavit of service was false, or that she played any role in the fraud perpetrated upon the court.

[4] The divorce order was granted on the allegation of the applicant that the parties had separated in 2000. On the affidavits filed on the motion by the applicant and various children of the marriage, the separation date fell somewhere between 1986 and 2000. If one believes the respondent, it may even have occurred as late as the fall of 2012. The assertion by the respondent that the separation did not occur until October 2014 is not sustainable. I say that for at least two reasons:

• The respondent’s address for service on all of the documents filed on this motion, including his reply affidavit, is 250 Dunlop Street East Whitby. The parties’ daughter Sophia lives there, and was living there in December 2012. Her evidence was that the respondent has used that address for mailing purposes, even though he has never resided there. In her affidavit she sets out that she recalls that the divorce application was delivered to her home in December 2012, and that she unsuccessfully attempted to locate the respondent in Jamaica where she believed him to be. [1] None of this evidence was in any way contradicted by the respondent in his reply affidavit.
• The applicant, and at least one of the parties’ children, have sworn that the respondent lived as a tenant in the applicant’s house from late 2009 until the fall of 2012, when he moved out never to return.

[5] The preponderance of the evidence supports a separation long before the date alleged by the respondent. Even if the parties lived as man and wife until the fall of 2012, the applicant was entitled to bring her divorce application based on the parties living separate and apart, and to obtain a divorce order no later than the fall of 2013.

[6] It is my finding that, on the balance of probabilities, the respondent was aware of the divorce order no later than a few weeks after it was granted in February 2013, and that he did nothing until September 2014 at the earliest. We know that because a lawyer wrote a letter to the applicant dated September 22, 2014, in which he said that he was counsel for the respondent and that his client wanted to “complete the equalization of the matrimonial home”. That was followed by another letter in November 2014 which began with the sentence “The only issue is the matrimonial home and its division.” In neither letter was there any mention of possibly setting aside the divorce.

[7] In his reply affidavit filed on the motion, the respondent swore that he was not aware of the divorce proceeding until October 2014, which is clearly incorrect as he caused his former lawyer to write that letter in September of that year. [2] He says that he then sought counsel from friends and family as to how he should proceed and eventually contacted a lawyer who was with the firm now acting for him. That lawyer later moved to Ottawa. Other than that, the respondent gives no explanation for the delay (at least eighteen months, and more likely three years) between the time he found out about the divorce and his bringing this motion.

[8] Based on my above findings, I do not think that it is necessary to go through the complete step by step analysis set out in the case law provided to me by counsel. I will however address a few of the factors to consider. To start with, the respondent did not act promptly to have the divorce judgment set aside once he learned of it, and has not provided an adequate explanation for the delay. The respondent has no arguable case on the merits with respect to the divorce order as such, given my finding that the parties separated no later than the fall of 2012. The prejudice, if any, falls more heavily on the applicant who for over three years now has lived as a single person.

[9] There is no doubt but that the respondent seeks the relief that he does in order to avoid having to seek an extension of time for an application under section 7 of the Family Law Act (FLA) for an equalization of the parties’ net family properties. I see no reason to facilitate that. If he so desires, the respondent may bring the necessary motion seeking an extension pursuant to subsection 2(8) of the FLA. Based on the affidavits of the children of the marriage filed on this motion, that may well prove to be an uphill battle.

[10] The respondent’s motion is dismissed.

[11] Counsel for the applicant may serve and file cost submissions, restricted to three pages, exclusive of a bill of costs, by forwarding that to my secretary within ten days of the release of this judgment. Counsel for the respondent may serve and file their response, restricted to three pages, within seven days thereafter and counsel for the applicant may serve and file their reply, restricted to two pages, within four days thereafter.

The Honourable Mr. Justice Roger Timms

DATE RELEASED: July 29, 2016

[1] Although I cannot make a finding in that regard, it is quite possible that in 2012 the respondent had given the applicant his daughter’s address as his address, at least for mailing purposes.

[2] Nowhere in his material did the respondent make mention of the involvement of this prior lawyer.