COURT FILE NO.: FS 4175/07 DATE: 20170309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.C.N. Lori MacIntosh, for the Applicant Applicant

• and -

A.N. Self-Represented Respondent

HEARD: March 8, 2017

REASONS FOR DECISION ON MOTION Conlan J.

I. Introduction

The Background

[1] On November 28, 2016, the Respondent father, A.N., brought a Motion to Change the Final Order made by Seppi J. on August 17, 2011. Specifically, A.N. asked to terminate child support payable by him for the benefit of C.N., born March 11, 1999 (turning 18 years old in a few days).

[2] The Applicant mother, A.C.N., failed to respond to the Motion to Change.

[3] In accordance with the local practice in Bruce County, although not required by the Family Law Rules, the father served the mother with a document titled “Notice to Respondent”.

[4] The purpose of that document is to provide the defaulting party with one last chance to participate in the proceeding by setting out the date, time and place of the uncontested trial.

[5] The father also served his affidavit in support of the relief sought in the uncontested trial.

[6] Again, the mother failed to respond. And she failed to appear in Court in Walkerton on February 1, 2017, at which time I made a Final Order terminating child support on a specific date.

The Motion

[7] On February 24, 2017, the mother, through her counsel, signed a Notice of Motion to set aside the Final Order made on February 1st.

[8] Succinctly put, the mother alleges that she was unaware of the Court date on February 1st.

[9] The father opposes the Motion.

II. Analysis

[10] I find this decision to be a rather vexing one.

[11] I know what I want to do out of basic fairness – set aside the Order that I made several weeks ago. But I am not sure how to do that, and I have found the submissions of counsel for the mother quite confusing on the issue of jurisdiction.

[12] With the father representing himself, I expected greater assistance from counsel for the mother on the jurisdictional issue.

[13] At the opening of the hearing at Court in Walkerton on March 8th, I asked counsel for the mother under what authority I could do what was being requested. I was directed to Family Law Rule 25(19).

[14] With respect, that Rule cannot apply to this Motion. I am not being asked to change or vary a Final Order but rather to set it aside.

[15] I then brought to the attention of counsel for the mother a Court decision that I found myself – Maslic v. Maslic, [2012] O.J. No. 5203 (S.C.J.), where Justice Gray of this Court dismissed a similar motion.

[16] Counsel for the mother made some meritorious submissions to the effect that the facts in that case were different than here, which I agree with, but I heard nothing about whether the decision of Gray J. could be accepted as authority for the proposition that no Rule authorizes what I am being asked to do, and thus, only the common law inherent discretion to set aside the February 1st Order could be exercised if I was persuaded that a manifest injustice would otherwise result.

[17] Counsel for the mother did not refer me to the Court of Appeal’s short decision in Maslic, [2013] O.J. No. 343.

[18] Having read that, I find comfort in the notion that I should go through the well-recognized three-part test for setting aside what is effectively a default judgment. I do so immediately below.

[19] There is no question that the mother moved very promptly, within a month, to set aside the February 1st Order.

[20] There is also no question that the mother has put forward at least an arguable case that child support ought not to have been terminated because the child is in no way independent, is taking high school courses and works only part-time.

[21] On the question of whether the mother has set out the circumstances of her default and the reason(s) for it, it is a very close call.

[22] I am satisfied that the mother’s affidavit, if true, explains her failure to attend Court on February 1st. But there is virtually nothing in the evidence filed that speaks to the original failure to deliver a Response to Motion to Change.

[23] In any event, I will stretch the facts in favour of the mother and conclude that her failure to respond to the Motion to Change was due, at least in part, to the well-documented and very serious problems that she was having with the child at the time.

[24] After all, wherever possible, cases involving the welfare of children ought to be decided on their merits.

III. Conclusion

[25] For these reasons, having satisfied on balance the three-part test to set aside what is effectively a default judgment, the mother’s Motion is granted.

[26] The Final Order made on February 1, 2017 is set aside.

[27] The mother shall deliver her Response to Motion to Change within ten calendar days of March 9, 2017.

[28] Further, the father ought not to be penalized any further for only doing what he was permitted to do in obtaining the uncontested relief that he got. Thus, no costs are ordered in favour of the mother. And the matter shall proceed to a Case Conference without delay after the mother’s pleading is filed.

[29] This is not a complicated matter. Conferences should be done within a few months, maximum, and the matter placed on the trial list. I see no reason why the trial would take longer than one day.

Conlan J.

Released: March 9, 2017