CITATION: Johal v. Sangha, 2016 ONSC 6791
COURT FILE NO.: FS-15-83179-00
DATE: 2016 12 02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Navpreet Kaur Johal v. Ravinder Singh Sangha
BEFORE: Bloom, J.
COUNSEL: Hamza Talpur, Counsel for the Applicant, Navpreet Kaur Johal
Jaswant Mangat, Counsel for the Respondent,
Ravinder Singh Sangha
HEARD: October 13 and December 2, 2016
E N D O R S E M E N T
I. INTRODUCTION
[1] The Respondent brings a motion seeking to set aside or alternatively to make changes to the order of Justice Herold dated September 24, 2015 by which His Honour ordered the parties divorced and granted corollary relief.
[2] The Applicant brings her own cross-motion seeking a dismissal of the Respondent’s motion.
II. FACTS NOT IN DISPUTE
[3] The Application was issued on April 9, 2015. By mid-May of 2015 the Respondent had been served with the Application.
[4] There is one child of the marriage, Ekamjot Singh Sangha, born January 10, 2012. He is afflicted with serious medical problems which make constant care necessary. The Applicant provides that care.
[5] The Respondent filed no answer, and Justice Herold granted the divorce and corollary relief in his order dated September 24, 2015 as a default judgement.
III. GOVERNING LEGAL PRINCIPLES
[6] The Respondent has invoked in his motion two bases of jurisdiction. He relies first on FLR 1(7) in combination with Rule 19.08(1) and (3) of the Rules of Civil Procedure; those provisions read as follows:
MATTERS NOT COVERED IN RULES
FLR 1 (7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7).
The Rules of Civil Procedure
SETTING ASIDE DEFAULT JUDGMENT
19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just. R.R.O.1990, Reg.194, r. 19.08 (1).
(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03. R.R.O.1990, Reg.194, r. 19.08 (3).
[7] Second, the Respondent relies upon FLR 25(19) (a), (d), and (e) which provide as follows:
CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE
FLR 25 (19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(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. O. Reg. 151/08, s. 6.
[8] The Respondent also relies upon FLR 2(2). I note that FLR 2(3), (4), and (5) are closely related to FLR 2(2) and for that reason I set out all of those provisions:
PRIMARY OBJECTIVE
FLR 2 (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
DEALING WITH CASES JUSTLY
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
DUTY TO PROMOTE PRIMARY OBJECTIVE
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
DUTY TO MANAGE CASES
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).blo
[9] In applying Rule 19.08 of the Rules of Civil Procedure to set aside a default judgement the courts have developed clear principles. In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at para 6.60 the learned authors set out those principles:
On a motion to set aside a default judgment, the court will consider the following three factors:(a) whether the motion to set aside the judgment was brought promptly; (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 at least an arguable defence. The factors, however, are not treated as rigid rules, and 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.
[10] As to FLR 25(19) (5)(a), in Dodge v. Dodge, 2007 80075 (On SC) Justice Campbell approved the classic definition of civil fraud at para 58 of his reasons:
In Derry v. Peek Lord Herschell summarized the authorities on civil fraud:
[…] fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth: Derry v. Peek (1889), 14 App. Cas. 337 (H.L.).
[11] The Respondent in the course of his argument also has sought to exclude as inadmissible, transcripts of telephone conversations between himself and the Applicant which he alleges that she recorded without his knowledge.The principles which govern the admissibility of this type of evidence in a family law proceeding were briefly reviewed by Justice Epstein speaking for the Ontario Court of Appeal in Sordi v. Sordi, 2011 ONCA 665 at paras 10 to 12:
Specifically, the appellant submits that the trial judge erred in refusing to admit audio tapes of recordings of conversations between himself, the respondent, and the children – tapes that he recorded without the respondent’s knowledge.
In my view, there was nothing unfair or improper about the conduct of the trial. Specifically, there is no reason to question the exercise of the trial judge’s discretion not to admit the proposed evidence about which the appellant complains.
With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.
IV. ANALYSIS
[12] The first issue I will consider is the whether the order of Justice Herold is to be set aside under the three-pronged test for setting aside a default judgement. In order to address this matter I must first consider the admissibility of the transcripts of the taped conversations.
[13] The Respondent alleges in his factum that “he was prevented by the Applicant from…[filing an answer] by an intentional and well planned fraudulent misrepresentation…, by assuring him that she sincerely wanted to compromise… [and] that she had instructed her then lawyer…to withdraw the Application.”
[14] An allegation of fraud is a serious one, and that allegation is a factor in my decision as to whether to admit the transcripts of the taped conversations. I will assume, for purposes of my analysis, that those conversations were recorded without the knowledge of the Respondent, although there is some dispute on that issue.
[15] The Court of Appeal in Sordi v. Sordi, supra requires that I have regard both to the public policy against admitting this sort of evidence in family law proceedings and to the probative value of the evidence in relation to the issues before me. I have read those transcripts. The conversations according to the affidavit of the Applicant sworn October 3, 2016 took place in June and July of 2015, between the service of the Application and the order of Justice Herold. They contain sufficient discussions by the parties of legal issues relating to the separation of the parties to render the transcripts of significant probative value in relation to the allegation of fraud made by the Respondent. Therefore, recognizing the public policy against their admission, I, nonetheless, admit the transcripts to allow the Applicant to defend herself against the allegation of fraud.
[16] Now examining the application of the three elements of the test regarding the setting aside of a default judgement, I note first that the Applicant has accepted that the Respondent acted in a timely manner in bringing his motion. The second factor is whether there is a plausible excuse for the Respondent’s default and the third whether the facts establish at least an arguable defense. According to The Law of Civil Procedure in Ontario, supra even in a non-family civil case the three factors are not to be applied rigidly; the court is determine whether it would be just to relieve the moving party of the consequences of his or her default. Moreover, FLR 2(2), (3), and (4) elevate in family law proceedings the importance of that overarching value of doing justice in the case at bar. In Frick v. Frick, 2016 ONCA 799 at paras 11 to 17 Justice Benotto for the Ontario Court of Appeal affirmed the importance of having regard to the family law context in importing the Rules of Civil Procedure pursuant to FLR 1(7):
[11] The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
[12] In the rare instance when a matter is not adequately covered by the family rules, the court may decide the issue with reference to the civil rules. This is contained in r. 1(7) of the family rules, which provides:
If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[13] Here, the motion judge determined that the family rules did not adequately cover the contents of a pleading because, unlike the civil rules, there was no requirement of a concise statement of material facts relied upon. He considered that, pursuant to r. 1(7) of the family rules, this issue was not adequately covered and he could apply r. 25.06(1) of the civil rules, which requires pleadings to contain a statement of material facts relied on. In the result, he concluded that the wife had not pleaded the material facts necessary to support her claim for a variation of the normal share of net family property.
[14] The motion judge’s analysis reflects a misunderstanding of the family rules.
[15] This case, like all cases in family law, was started with an “Application” in the prescribed Form 8. In accordance with this form, a party is required to set out the details of the order sought and the important facts supporting the claim.
[16] Rule 1(7) does not apply to redirect the court to the civil rules, because the family rules adequately cover the contents of an application. The family rules do not require all the material facts relied on to be set out at the time the case is started because a party will often not know all the facts supporting a claim. That is why the family rules provide stringent financial disclosure obligations. The emphasis on financial disclosure reflects the fact that parties might not know – and are entitled to find out – the details of the other’s circumstances. To require a party to plead “material facts” before financial disclosure would run contrary to the way family litigation is conducted, contrary to the family rules and contrary to basic fairness.
[17] The wife’s pleading claiming an unequal division of net family properties was not defective for failure to plead material facts.
[17] I have considered the affidavit evidence and cross-examinations filed by the parties. The transcripts of the taped conversations prevent the finding of the fraud alleged by the Respondent, having regard to the discussions of legal issues relating to separation. Of importance as evidence of reconciliation efforts is the testimony of the Applicant on cross-examination that even as late as September of 2015 and before the order of Justice Herold, she was meeting socially with the Respondent along with his sister to discuss what the Applicant described as the Respondent’s sister’s suggestion, “[I]f you want to finish it up why don’t you guys just sit down-talk about that and then solve it rather than going to the court or just get back together.” The evidence is, therefore, that after the service of the Application and before Justice Herold’s order there were discussions of both dissolution of the marriage and reconciliation. It is possible that the Respondent convinced himself that reconciliation would take place, and that he need not defend the Application; however, it is clear inter alia from the taped conversations, that the Applicant did not defraud him into that belief.
[18] It is clear that the Respondent has an arguable case in relation to access to the child of the marriage. Further, in my view to do justice in this case on the issues of child and spousal support, special and extraordinary expenses, and property matters would require a hearing of both parties. The Applicant argues that setting aside the order of Justice Herold will create protracted litigation contrary to the interests of Ekamjot and, therefore, contrary to justice, since the litigation would distract the Applicant from caring for him. I am concerned about his care. However, the role of the Respondent in giving input relative to the child’s treatment, education, development, and religion is an issue on which the Respondent seeks a hearing. I believe that it is in the interests of this child and justice to have his father’s role in this area defined after a hearing of both parties.
[19] I find that to do justice in this case the order of Justice Herold of September 24, 2015 must be set aside, and I so order. I do so on terms as contemplated by Rule 19.08(1). I will address those terms below.
[20] In view of my finding that the order of Justice Herold is to be set aside, I need not address the Respondent’s alternative submission that that order be changed under Rule 25(19).
[21] I also dismiss the cross-motion of the Applicant.
V. TERMS, NEXT STEPS AND COSTS
[22] I extend the terms of the order of Justice Andre dated December 18, 2015, subject to variation on application of either party at the hearing referenced below.
[23] Having regard to FLR 2(5), in particular paragraph (d), I order that the parties arrange expeditiously through the trial office in consultation with my secretary a hearing by January 11, 2017, to address a timetable for next steps in the proceeding. Further, at this hearing I will hear the submissions of the parties on the matter of costs on the motions.
Bloom, J.
DATE: December 2, 2016
CITATION: Johal v. Sangha, 2016 ONSC 6791
COURT FILE NO.: FS-15-83179-00
DATE: 2016 12 02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Navpreet Kaur Johal v. Ravinder Singh Sangha
BEFORE: Bloom, J.
COUNSEL: Hamza Talpur, Counsel for the Applicant, Navpreet Kaur Johal
Jaswant Mangat, Counsel for the Respondent,
Ravinder Singh Sangha
ENDORSEMENT
Bloom, J.
DATE: December 2, 2016