Bidner v. Tapp, 2017 ONSC 6846

CITATION: Bidner v. Tapp 2017 ONSC 6846

COURT FILE NO.: FC-99-25486-1

DATE: 2017/11/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shawn Harris Bidner, Applicant

-and-

Jessica Jeanette Tapp, Respondent

BEFORE: Madam Justice D. Summers

COUNSEL: Applicant is self-represented

Jirina Bulger, for the Respondent

HEARD: August 15, 2017

ENDORSEMENT

1This is a motion by the Respondent, Jessica Tapp, to set aside the final Order of Justice Phillips dated August 18, 2016. The Order in question was granted to the Applicant, Shawn Bidner, at an uncontested trial in his Motion to Change the Judgment of Justice Suzanne Tessier, of the Quebec Superior Court, dated July 30, 2009. Mr. Bidner’s Motion to Change was commenced in March, 2016. The relief sought and obtained was the rescission of child support arrears.

Background and Relevant Litigation History

2Mr. Bidner and Ms. Tapp were married on August 16, 1997 and separated in 1999. Their only child, Gabriel, was born on August 27, 1998. Gabriel has been a post-secondary student at John Abbot College in Montreal, since 2015.

3Both parties are hairstylists. It is not known where Mr. Bidner currently works. Ms. Tapp carries on business from her home which she rents from her mother. She is a single mother of two younger children from a second marriage that also broke down. She struggles financially to make ends meet. Ms. Tapp states that she continues to have a close relationship with Gabriel. She is unable to offer much financial help toward the cost of his studies.

4The uncontested trial before Justice Phillips in August, 2016 ended the last of three actions commenced by Mr. Bidner since separation. The first proceeding was started in Ontario in 1999. There were multiple interim motions. Ultimately, Minutes of Settlement were signed in 2002. In 2006, Mr, Bidner commenced a second action in Quebec for a divorce and corollary relief. According to Ms. Tapp, there were at least twelve interim motions before the case reached trial in 2009. Four days of trial resulted in the Judgment of Justice Tessier dated July 30, 2009. Ms. Tapp was granted custody of Gabriel. The court imputed income of $90,000.00 a year to Mr. Bidner, fixed the amount of child support accordingly and ordered it to be paid retroactive to July 1, 2006. Mr. Bidner was also ordered to pay costs in the amount of $5,000.00.

5Mr. Bidner was self-employed as a hair stylist at the time. He did not pay support voluntarily and Justice Tessier’s Judgment was registered with Revenu Quebec for enforcement. By September, 2009, the amount of child support owing to Ms. Tapp totaled $27,554.55. Revenu Quebec was only able to collect small sums from time to time by seizing Mr. Bidner’s tax refunds.

6In December, 2010, Gabriel moved from his mother’s home to live primarily with his father. He continued to spend time at his mother’s house at least three days a week. As of November 30, 2010, when Gabriel moved to live with Mr. Bidner, child support arrears totaled $38,490.63 and the $5,000.00 cost award remained outstanding.

7In April, 2012, Mr. Bidner brought a motion before the Quebec court to vary custody, terminate child support and cancel arrears. Parenting issues were resolved on consent and the support issues were argued before Justice Pierre Isabelle. His Order dated May 16, 2012 terminated ongoing child support and cancelled the arrears that had accumulated after December 1, 2010. Justice Isabelle declined to reduce or rescind arrears that accumulated prior to December 1, 2010. [Emphasis added]

Issues

8The first issue is procedural. It is Ms. Tapp’s position that this court has jurisdiction to set aside Justice Phillips’ Order under rule 25(19) of the Family Law Rules (FLR’S) in addition to its inherent jurisdiction to do so. On the other hand, Mr. Bidner argues that Ms. Tapp’s only recourse is to an appellate court. The second issue is this: what are the factors for the court to consider when exercising its discretion to set aside a final order.

Applicable Law and Analysis

9It is now settled law in Ontario that rule 25(19) of the Family Law Rules gives a trial court jurisdiction to set aside an order. See Gray v. Gray, 2017 ONCA 100. The Rule states that the court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(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.

10Here, the relief sought by Mr. Bidner in his Motion to Change was an order terminating the child support payable under Justice Tessier’s Judgment dated July 30, 2009, effective March 16, 2016. He also asked the court to cancel arrears owing in the amount of $48,000.00. There is no evidence, however, to indicate that Mr. Bidner made Justice Phillips aware of the Quebec Superior Court Judgment of Justice Isabelle, dated May 16, 2012, where his request to cancel arrears had already been decided. At that time, Justice Isabelle forgave the arrears that had accumulated under Justice Tessier’s Judgment after December, 2010, when Gabriel went to live with his father, but did not cancel the arrears for the period before December 1, 2010, when Gabriel was in Ms. Tapp’s sole custody. This was vital information that Mr. Bidner was obliged to have put before the court and he did not do so. The only reference that Mr. Bidner made to Justice Isabelle’s Judgment in his Motion to Change was to confirm that it gave him custody of Gabriel.

11I am also of the view that Justice Phillips’ finding that it would be unjust for Mr. Bidner to pay arrears when the child had been living with him full-time since 2010, was grounded in belief that he was cancelling only the arrears that had accumulated after December, 2010, when Gabriel went to live with him. There was no evidence before Justice Phillips that there were arrears owing for the period between 2006 and November 30, 2010. I find that Mr. Bidner’s silence on critical facts had the effect of misleading Justice Phillips in two material ways. First, Mr. Bidner allowed the court to believe the only arrears in question were those attributable to the post December, 2010 period. Second, he put the court in the unknowing position of ruling on a matter that had already been decided by the Quebec Superior Court. Mr. Bidner’s actions and/or omissions were akin to a fraud on the court. Rule 25(19)(a), therefore, applies to give this court jurisdiction to set aside Justice Phillips’ Order.

12Before the court exercises its discretion to set aside a default judgment, there are certain factors to be considered. See Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 where the Ontario Court of Appeal sets out the following considerations:

1. Whether the Respondent moved promptly after learning of the default judgment;

2. Whether the Respondent has a plausible excuse or explanation for the failure to respond and comply with the Rules;

3. Whether the facts establish that the Respondent has an arguable case on the merits;

4. What is the potential prejudice to the Respondent if the default order is not set aside and what is the potential prejudice to the Applicant if the order is set aside;

5. What is the effect of the order made by the court on the overall integrity of the administration of justice.

13I turn now to consider these five factors in the circumstances of this case.

Has Ms. Tapp Offered a Plausible Explanation?

14Ms. Tapp does not deny that she was served by Mr. Bidner in April, 2016 but puts her failure to deal with the proceeding into the context of her life at the time. Among her reasons, she states her belief that all legal matters between her and Mr. Bidner had been resolved on a final basis by Justice Isabelle’s Order dated May 16, 2012. Because of that Order, she says she could not contemplate how he could again be asking the court to cancel his child support arrears. The issue had been litigated and decided. Notwithstanding the toxic and litigation laden history between the parties, Ms. Tapp let herself believe that Mr. Bidner’s documents were some attempt at ongoing harassment.

15Equally important is Ms. Tapp’s explanation of her mental state at the time that she was served. She had been suffering from depression and anxiety and taking prescribed medication since the fall of 2014. She believed the medication was helping but the side effects left her disengaged and lethargic. While able to cope with the basics of day to day life, she was prone to avoidance behavior and ignoring those things that caused her stress. She states that she was afraid of her depression getting worse and her fear of that fed her tendency to act in self-preserving ways. Hearing from Mr. Bidner again through the court system upset her and she shut down. She also speaks of confusion at receiving documents from an Ontario court. Both parties had lived in Quebec for many years and she was not aware of Mr. Bidner’s alleged return to Ontario.

16Considering the fact that Ms. Tapp had defended all prior proceedings between 1999 and 2012 along with the other reasons she offers, I accept her explanation for her failure to respond to Mr. Bidner’s Motion to Change as reasonable and plausible.

Did Ms. Tapp Move Promptly?

17Ms. Tapp did not delay for long after October 27, 2016 when she learned from Revenu Quebec that child support arrears had been reduced to zero. Her first step was to attend the Ottawa courthouse in early November, 2016. Ms. Tapp did not find the help there that she had hoped would be available to her. She states that she then struggled a bit to decide on next steps. The financial and emotional toll of more litigation with Mr. Bidner worried her and for a while, she says that she contemplated giving up.

18Early in December, 2016, Ms. Tapp received another call from Revenu Quebec. This time they called to let her know that Mr. Bidner had sold a property and they were holding the sale proceeds in trust. She was advised that they were obliged to release the funds to Mr. Bidner in the absence of a challenge to Justice Phillips’ Order. Just before Christmas, Ms. Tapp contacted counsel and this motion was prepared in January, 2017. The first return date was set for April 13, 2017 and attempts to serve Mr. Bidner, began on February 10, 2017. The hearing date in April was adjourned to allow Mr. Bidner to file materials.

19Considering the evidence of Ms. Tapp’s mental state, the date on which she learned that child support arrears had been reduced to zero, her litigation fatigue, and the date when she learned of the monies being held in trust by Revenu Quebec, I find that she acted promptly to move to set aside Justice Phillips’ Order. The delay since then has been systemic in nature or due to the difficulty serving Mr. Bidner.

Does Ms. Tapp Have an Arguable Defence on the Merits?

20Had Justice Phillips been aware of the terms of Justice Isabelle’s Order dated May 16, 2012, specifically his refusal to cancel the pre-December, 2010 child support arrears, this case may well have unfolded differently. On this basis alone, I find that Ms. Tapp has an arguable defence to Mr. Bidner’s Motion to Change.

What is the Potential Prejudice to Ms. Tapp if the Default Order is Not Set Aside vs. The Potential Prejudice to Mr. Bidner if the Order is Set Aside?

21The effect of Justice Phillips’ Order was to cancel approximately $48,000.00 in child support arrears owing to Ms. Tapp for the period between July, 2006 and December 1, 2010 when Gabriel was in her custody. In the absence of any support payments from Mr. Bidner during those years, sole responsibility for Gabriel’s financial needs fell to her. She is of limited means and Revenu Quebec is in possession of funds from the sale of Mr. Bidner’s property. The opportunity to recover child support arrears, a portion of which has been owed to her for over a decade, is now a real possibility. There can be no doubt of the prejudice to Ms. Tapp if she is not provided the opportunity to defend Mr. Bidner’s Motion to Change.

22Conversely, I find no prejudice to Mr. Bidner if Justice Phillips’ Order is set aside. He has known for years that he owed arrears of child support. He chose not to pay support, as and when due. He tried to have the court in Quebec absolve him of that responsibility and he failed. His success in Ontario was gained in the absence of a defence and aided by his failure to place all relevant information before the court. Considering the circumstances of this case, I do not find that Mr. Bidner will be prejudiced by an order that restores Ms. Tapp to a position where she may file her response and be heard.

What is the Effect of the Order Made by the Court on the Overall Integrity of the Administration of Justice?

23In Mountain View Farms, the court states that the factors to be considered before the court exercises discretion to set aside a default judgment are not to be treated as rigid rules nor does the court have to be satisfied on all factors. In order to reach an outcome that is just, the analysis should be contextual with consideration given to the particular circumstances of each case. The circumstances here and, in particular, what I regard as an attempt by Mr. Bidner to mislead the court, cause me to conclude that the failure to set aside Justice Phillips’ Order would be unjust and would risk compromising the integrity of the administration of justice.

24For the reasons given, I allow Ms. Tapp’s motion to set aside the Order of Justice Phillips dated August 18, 2016. She shall now have 30 days to file her Response to Mr. Bidner’s Motion to Change.

25Ms. Tapp is entitled to her costs on this motion. If the parties are unable to settle the issue of quantum and payment, Ms. Tapp shall provide her costs submissions within 10 days and Mr. Bidner shall then have 10 days to respond. Ms. Tapp shall have a further 5 day right of reply. Submissions shall not exceed 2 pages in length excluding any Offers to Settle and Bills of Costs.