Court File and Parties
NEWMARKET COURT FILE NO.: FC-15-48013-00 DATE: 20170704 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Amy Rochelle Beraznik, Applicant and Jason Williams, Respondent
BEFORE: The Honourable Mr. Justice Kaufman
COUNSEL: Lisa Mendlowicz, Counsel for the Applicant Golnaz Simaei, Counsel for the Respondent
HEARD: In Chambers
Ruling on Motion
[1] This matter proceeds before me by 14B Motion brought by the respondent on notice to the applicant. The applicant has not filed a response. This 14B shall be referred to as “Motion #2”.
[2] The Motion seeks an order setting aside the Endorsement dated February 27, 2017 which granted an Order on the terms of Final Minutes of Settlement dated June 15, 2015. That Order was obtained by a 14B Motion on Notice that proceeded on an unopposed basis. This 14B shall be referred to as “Motion #1”.
[3] The Affidavit filed in support of Motion #1 referred to in the preceding paragraph states that the parties, with counsels then representing them, attended at the Newmarket courthouse for a Case Conference. It was submitted that Final Minutes of Settlement were entered into by the parties. Due to the lateness of the day, the court did not deal with the matter and it was allegedly agreed upon between counsels that they would proceed by 14B Motion to obtain a final order reflecting the terms of the Minutes.
[4] Subsequently counsel for the respondent prepared a draft order that included revisions to the Minutes dealing with parenting issues that the applicant did not consider as changing the substantive provisions of the Minutes.
[5] At the same time the applicant was preoccupied with dealing with her bank in an effort to refinance her mortgage in accordance with the Minutes. As a result, the completion of the filing of the order remained in abeyance and a final order never entered.
[6] The applicant maintained in her supporting affidavit that there was no dispute that the Final Minutes of Settlement were signed by both parties and their respective counsels on June 15, 2015, thereby resolving all issues between them. She indicated that if the respondent wished to change any terms of the Minutes that he should proceed by a motion to change.
[7] Regarding Motion #2 now before me, the supporting affidavit recites that the respondent was not afforded time as stipulated in the Family Law Rules (“Rules”) to file his response to the applicant’s Motion #1. In summary, the Motion #1 was served by courier on February 22, 2017 and is therefore deemed to have been served on Thursday February 23, 2017. Pursuant to the Rules, the respondent had 4 days in which to respond which, in accordance with Rule 3 required the response to be filed on March 1, 2017. The respondent attempted to file the response on February 28, 2017 only to be advised that the court had granted the order requested in Motion #1, apparently two days earlier to when the respondent was entitled to file his responding material.
[8] On March 1, 2017 counsel for the respondent communicated with the applicant’s counsel, in writing, explaining all of the above and requesting that a final order not be issued or entered. No response was received at the time of filing of Motion #2 on March 21, 2017. Due to a combination administrative misadventures this matter has just recently been brought to the court’s attention. It is noted that the Endorsement Brad of the Continuing Record does not include an entered order.
Analysis
[9] Rule 14(10.1) provides that absent a response to a 14B motion served within 4 days, the motion shall be dealt with as an unopposed motion. As set out above, when the court granted the order on February 27, 2017 the 4 day timeframe provided in the Rules for a response had not yet expired. As such, the order of the court cannot stand.
[10] If I am incorrect in finding that the order cannot stand, then this matter should be dealt with as setting aside a default judgment. 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.).
[11] The material filed by the respondent reflects that he moved promptly after learning of the court’s Endorsement of February 27, 2017. In fact his counsel communicated with opposing counsel within two days. Further, the material presents more than a plausible explanation for the default, namely, that he purported to respond in accordance with the time frame set out in the Rules to no avail.
[12] The respondent has filed an Affidavit found at Volume 2, Tab 17 dated February 28, 2017. It was prepared in response to Motion #1. It comments that there are ongoing parenting issues that remain unresolved and which were topics of ongoing dialogue between the applicant’s counsel and his new counsel throughout 2016. It also comments on Small Claims Court litigation between the parties regarding matters that have arisen subsequent to the signing of the original Minutes. While I make no comment on the propriety of the Small Claims Court to resolve matters covered under the Family Law Rules, the Affidavit suggests that there is an arguable case on the merits regarding whether or not the signed Minutes of Settlement remain binding or whether a Motion to Change is required.
[13] The respondent’s Affidavit also comments on the counsels attempts to schedule a Case Conference before the Case Management Justice to review these issues. In that Motion #1 does not appear to be procedural, uncomplicated or unopposed, it should not be the subject matter of a 14B Motion and should proceed, if necessary, by a Motion on Notice heard in open court.
[14] For reasons aforesaid, the Final Order granted by Justice Nelson by Endorsement dated February 27, 2017 is set aside. Prior to a Motion being scheduled, in that the original Minutes of Settlement were entered into more than two years ago, it would be appropriate for the matter to be reviewed at a Case Conference prior to a Motion being scheduled. The parties are to request the earliest possible Case Conference date from the Trial Coordinator.
Justice R. P. Kaufman