Citation: Gagnon v. Vance, 2017 ONSC 7575

COURT FILE NO.: FC-16-459

DATE: 2017/12/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sylviane Roseline Gagnon, Applicant

-and-

Stephen Alan Vance, Respondent

BEFORE: Justice D. Summers

COUNSEL: Frederic Huard for the Applicant

Rodney Cross for the Respondent

HEARD: September 14, 2017

ENDORSEMENT

[1] This is a motion by the Respondent, Stephen Alan Vance, to set aside the final Order of Justice McLean dated December 15, 2016. The Order was granted to the Applicant, Sylviane Roseline Gagnon, at the uncontested trial of her Application for divorce and corollary relief.

Background

[2] Ms. Gagnon and Mr. Vance married each other on August 7, 2004 and separated 8 years later on June 3, 2013. They did not have children together.

[3] Mr. Vance was previously married. His son, Jacob, from that relationship, is now 19 years old.

[4] Ms. Gagnon commenced her Application in March, 2016 naming Rose-Lyne Gauthier as the solicitor of record for Mr. Vance. Service of the Application was not completed until August 22, 2016. It was carried out by leaving the documents in an envelope with the daughter-in-law of Mr. Vance’s common law partner. There is no evidence to indicate that Ms. Gauthier’s office had been contacted to accept service or that a copy of the Application was provided to her by Ms. Gagnon’s lawyer.

[5] Mr. Cross, who now represents Mr. Vance, argues that there were irregularities around service. Nevertheless, it is clear that the documents came to Mr. Vance’s attention. He contacted his then lawyer, Ms. Gauthier, on September 11, 2016 and met with her on September 19, 2016. The motion before the court is the result of the steps not taken on his behalf.

The Issue

[6] The question to be determined on this motion is whether the court should exercise its discretion to set aside the Order of Justice McLean dated December 15, 2016?

The Law

[7] It is now settled law in Ontario that Rule 25(19) of the Family Law Rules (FLR’s) provides a trial court with jurisdiction to set aside an order: Gray v. Gray, 2017 ONCA 100. There, the Court of Appeal interpreted the word “change” as including the authority to “set aside”. Rule 25(19) 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.

Analysis

[8] In support of his request to set aside Justice McLean’s Order, Mr. Vance relies on the Affidavit of Jessica Méranger, sworn May 9, 2017 as well as on his own Affidavit sworn on the same day. Ms. Méranger, who was an employee of Ms. Gauthier, describes certain circumstances at play in their office that may have impacted Mr. Vance’s file both before and after the uncontested trial and discovery of Justice McLean’s Order.

[9] According to Ms. Méranger, Ms. Gauthier was frequently absent from the office during September and October, 2016. Her mother had been hospitalized with a terminal illness and she was the only family member to provide care and look after her affairs. After her mother’s passing in late October, Ms. Gauthier fell into a serious depression and was not present in the office every day. I find Ms. Méranger’s account of Ms. Gauthier’s personal circumstances to be significant in understanding how this matter unfolded.

[10] The relevant chronology begins on September 19, 2016 when Ms. Gauthier met with Mr. Vance. On the same day, she sent an email to Mr. Huard, who was Ms. Gagnon’s solicitor of record. The purpose of Ms. Gauthier’s email was twofold: to confirm the date that the Application had been served; and to obtain Mr. Huard’s consent to the late filing of her client’s Answer. The only reply from Mr. Huard’s office was an email also dated September 19, 2016. The email appears to have been an automated computer response confirming that Ms. Gauthier’s email had been received and read. Ms. Méranger indicates that follow-up telephone messages were left with Mr. Huard’s office. They too went unanswered. There was no further contact between their respective offices until Ms. Gauthier learned that Justice McLean had granted an order. This evidence is not disputed.

[11] On January 25, 2017, Mr. Vance emailed Ms. Gauthier to advise that he had received documents in the mail from the Family Responsibility Office (FRO) that referred to an Order dated December 15, 2016. Ms. Gauthier concluded that an order had been obtained on default. She assured Mr. Vance that she would deal with the matter and bring it back before the court, if necessary.

[12] In mid-February, 2017, Mr. Vance received a Statement of Arrears from FRO indicating that that he owed Ms. Gagnon spousal support totaling $20,610.00 plus $14,000.00 in interest. Support had been calculated retroactively to 2013. On March 2, 2017, Mr. Vance learned that his pay was to be garnished.

[13] Notwithstanding the exchange between Mr. Vance and Ms. Gauthier in late January, 2017 regarding FRO and the Order of December 15, 2016, there is no evidence that anything was done on Mr. Vance’s behalf until March 27, 2017. On that day, Ms. Gauthier emailed a letter to Mr. Huard requesting his consent to set aside Justice McLean’s Order. As before, Ms. Gauthier received an email from Mr. Huard’s computer system acknowledging receipt of her correspondence and stating that it had been read. The reply email was the only communication that Ms. Gauthier received from Mr. Huard’s office. According to Ms. Méranger, a follow-up email was sent to his office on April 10, 2017 and a further telephone call was made.

[14] On May 15, 2017, Ms. Gauthier’s office scheduled this motion. Shortly thereafter, Mr. Vance gave notice of his intention to act in person. By the time this motion was heard, he had retained Mr. Cross as his counsel.

[15] I find that Mr. Vance has provided a reasonable explanation for his failure to file an Answer and appear in court. Therefore, Rule 25(19)(e) applies to provide the jurisdiction to set aside Justice McLean’s Order. After Mr. Vance was served with Ms. Gagnon’s Application, he did as one would expect - he contacted his lawyer and had a meeting with her. Ms. Gauthier, in turn, promptly contacted Mr. Huard. Unfortunately, Ms. Gauthier did not remain vigilant. In this regard, I accept Ms. Méranger’s evidence that during September and October, 2016, Ms. Gauthier was dividing her time between the office and the hospital, to be with her mother, and then struggled to deal with her death. It is apparent that Mr. Vance relied on his lawyer to protect his interests who, initially took steps to do so, but did not follow through.

[16] Although Mr. Huard’s office was not required to give further notice of his intention to schedule an uncontested trial, I find the failure to do so to be concerning in these circumstances. Ms. Gauthier had been named as Mr. Vance’s solicitor of record when the Application was issued. In addition, she communicated with his office in September, 2016 to signal Mr. Vance’s intention to defend the proceeding. These two facts alone suggest that the courtesy of a short letter giving notice of next steps might have set this matter on a different course.

[17] Before the court exercises its discretion to set aside a default order, there are additional factors to be weighed. Factors that are not to be seen as rigid rules but rather as considerations to be analyzed in the particular circumstances of each case in order to reach a just outcome: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. I now address these factors.

1. Does Mr. Vance have a plausible excuse or explanation for the failure to respond and comply with the Rules?

[18] For the same reasons that Rule 25(19)(e) applies to the facts of this case, I find that Mr. Vance has provided a plausible explanation for his failure to file an Answer. He sought the assistance of counsel and had reason to believe that steps had been taken to protect his position before the court. Mr. Vance’s reliance on counsel was understandable although his failure to follow up with Ms. Gauthier regarding the status of his case remains somewhat puzzling.

2. Did Mr. Vance move promptly after learning of the default judgment?

[19] The answer to this question is yes. Mr. Vance contacted his counsel promptly after receiving the support enforcement documents from FRO that referred to Justice McLean’s Order. Ms. Gauthier assured him that she would deal with the matter. Although the evidence does not indicate that any steps were actually taken by Ms. Gauthier at that time, I am satisfied that Mr. Vance still had reason to believe that his legal case was being handled by counsel.

3. Do the facts establish that Mr. Vance has an arguable case on the merits?

[20] There is evidence to establish that Mr. Vance does have arguable defence on the merits. There are net family property issues that were not raised at trial including his claim to date of marriage deductions. Mr. Vance states that he did not own RRSP’s or a retirement pension at the date of separation yet, the Order directs him to transfer one half of these assets to Ms. Gagnon. Mr. Vance also challenges Ms. Gagnon’s spousal support claim and the finding that he earns $60,000.00 a year. His 2016 T4 indicates income of $53,249.00. The decision to award support retroactive to June, 2013 is a further area of dispute. Mr. Vance states that the first notice he received of Ms. Gagnon’s intention to seek spousal support was in her Application as served in late August, 2016.

4. What is the potential prejudice to Mr. Vance if the default order is not set aside and what is the potential prejudice to Ms. Gagnon if the order is set aside?

[21] I find the potential prejudice to Mr. Vance to be significant. One obvious example is this. Justice McLean’s Order directs Mr. Vance to transfer assets that he claims he does not own which, if true, makes compliance with the order impossible. Another example of the potential prejudice to Mr. Vance is the obligation to pay significant sums of money to Ms. Gagnon that he may or may not be found to owe once the court has the benefit of his evidence. On the other hand, I do not find any potential prejudice to Ms. Gagnon that cannot be addressed by a costs order, if appropriate.

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

[22] In my view, the interests of justice will suffer if Mr. Vance is not given the opportunity to be heard. He did not ignore the proceeding commenced by Ms. Gagnon. He reacted appropriately by contacting his lawyer to protect and represent his interests. Ms. Gauthier’s email to Mr. Huard dated September 19, 2016 indicated Mr. Vance’s intention to defend the Application. Why else would Ms. Gauthier ask for confirmation of the date of service and for consent to late filing? Moreover, Ms. Méranger’s evidence speaks with some candor to Ms. Gauthier’s personal circumstances including the loss of her mother and her subsequent illness during the critical period when Mr. Vance’s file required attention. I do not see evidence here of wilful delay by Mr. Vance or disrespect for the court.

[23] For the reasons given, I allow Mr. Vance’s motion and set aside the Order of Justice McLean dated December 15, 2016. Mr. Vance shall have 30 days to file his Answer and to schedule a Case Conference.

[24] At the conclusion of argument, counsel for Mr. Vance advised the court that his client was not seeking costs. I, therefore, order that each party shall pay their own costs.

Justice D. Summers

Date: December 20, 2017

CITATION: Gagnon v. Vance, 2017 ONSC 7575

COURT FILE NO.: FC-16-459

DATE: 2017/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Sylviane Roseline Gagnon, Applicant

-and-

Stephen Alan Vance, Respondent

BEFORE: Justice D. Summers

COUNSEL: Frederic Huard for the Applicant

Rodney Cross for the Respondent

ENDORSEMENT

SUMMERS, J.

Released: December 20, 2017