CITATION: Weaver v. Weaver, 2017 ONSC 827
COURT FILE NO.: F158/15-01
DATE: February 3, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Catherine Weaver, applicant
AND:
Phillip Joseph Weaver, respondent
BEFORE: HENDERSON J.
COUNSEL: Brenda Barr for the applicant
B. Thomas Granger, Q.C., for the respondent
HEARD: December 22, 2016
ENDORSEMENT
[1] This matter was called before me for a trial to commence November 7, 2016. The respondent, who was not then represented, failed to appear, although paged. I dismissed the respondent’s claim for spousal support and heard evidence on the applicant’s application. On November 8, 2016, at the end of the applicant’s case, I issued an order for divorce and reserved my decision otherwise. The decision concerns primarily property and a calculation of the equalization payment, and remains on reserve.
[2] By motion first returnable December 2, 2016, the respondent, now represented by counsel, brought a motion seeking “leave to call evidence and/or make submissions prior to final judgment being rendered.” He is content that the divorce order remain.
[3] The question to be answered is whether the respondent is entitled to relief and, if so, what.
Background
[4] The parties were married October 30, 1982 and separated in July 23, 2014. The applicant commenced these proceedings by application issued February 12, 2015. She sought, among other relief, a divorce and an equalization of the parties’ net family property. In his answer, the respondent sought spousal support and also an equalization of the parties’ net family property.
[5] This matter was initially scheduled for trial in June 2016. A trial management conference was held before Vogelsang J. It was attended by both parties and counsel and the trial scheduling endorsement form was completed. There is a provision in the form that states that if a party does not attend trial, an order may be made in the party’s absence. It was not reached in June and was traversed to the September sittings. By order dated August 24, 2016, counsel was removed as solicitor of record for the respondent.
[6] On August 23, 2016, the trial coordinator sent an email confirming the commencement of the sittings and the scheduling of the trial readiness court on September 6, 2016. In response, the respondent sent emails to both Ms. Barr, counsel for the applicant, and the trial coordinator, indicating that he would be out of the country from September 19 until October 15 or 16 and “would not be attending any trial functions, a trial, or preparing for one.”
[7] The endorsement record shows the respondent did not attend the trial readiness court on September 6, 2016, at which time he could have provided further details or request an adjournment of the trial. The matter was eventually traversed to the October sittings. Again the respondent did not attend the trial readiness court, presumably because he was away. The matter was not reached before the end of the sittings and again traversed to the November sittings.
[8] By email dated November 2, 2016, the trial coordinator advised both parties that the matter was being called for trial commencing November 7, 2016 and advising them to file a trial record, if not already done so. The respondent responded with a copy to Ms. Barr the same day, by email, saying “I will not attending (sic).” About a half hour later, he sent a further email to the trial coordinator only saying “I do not have a lawyer, nor do I have a trial record.”
[9] When the trial commenced on November 7, 2016, the respondent was paged and I waited 20 minutes for his arrival. After the respondent failed to appear, the trial proceeded in his absence.
[10] In the weeks leading up to the commencement, Ms. Barr was having her own difficulties with communications with the respondent. Starting October 14, 2016, she attempted to arrange courier service on the respondent of exhibits and evidence, as required by the trial scheduling endorsement form. As it contained information personal to the respondent, she did not want it left on the doorstep.
[11] He did not accept service or make any arrangements otherwise for the delivery of the briefs. On October 18, 2016, he sent two emails to Ms. Barr. The first stated: “As previously stated I will not be participating in a trial. I look forward to talking to a judge, however. I will advise the trial coordinator.” The second email closed the door on any further communication with Ms. Barr: “I will not accept any further communication from Barr.”
[12] In support of his motion, the respondent filed an affidavit sworn November 23, 2016. It was brief but contained the following points:
he believed it was September when his counsel got off the record;
he found it “extremely difficult to deal with procedures and the Family Law Rules”;
he always intended to pursue his support claim;
he is dependent on the applicant as she makes $300,000 per year and he is retired and lives off Canada Pension in the amount of $473 per month;
in not attending the trial, he meant no disrespect to the court or Ms. Barr; and
he sincerely apologizes for his conduct.
Analysis
[13] Both parties agreed that, as I had not released any decision, I, and I alone, have the unfettered discretion to grant the respondent the relief he seeks.
[14] Because of the unique facts in this case, neither counsel were able to tender any case law that might provide some on point guidance regarding the exercise of my discretion. In the absence of such jurisprudence, counsel suggested two approaches that may be applicable by analogy.
[15] Ms. Barr suggested I might approach the respondent’s motion as a request to reopen the trial to permit the respondent to call fresh evidence. There is a two-part test set out by the Supreme Court in 671122 Ontario Limited v. Sagaz Industries Canada Inc., 2001 SCC 59 at para. 20:
20 … First, would the evidence, if presented at trial, probably have changed the result? Second, could the evidence have been obtained before trial by the exercise of reasonable diligence?
[16] In rendering a decision pursuant to this test, it is well recognized that the courts have inherent jurisdiction and unfettered discretion to reopen any matter to prevent an abuse or miscarriage of justice. But the discretion to reopen a matter should be used sparingly (Harrison v. Harrison, 2007 BCCA 120 at para. 28).
[17] I do not find the fresh evidence approach helpful in the present case. In those cases where such a motion is brought, the party seeking the relief has already participated in the trial and has had an opportunity to put in their case. Courts want finality to trials and try to discourage litigants from getting second thoughts afterwards. Hence, they have imposed a high threshold the moving party must meet with the requirements of the test and that discretion to reopen in any event should be exercised sparingly.
[18] These principles do not apply in the present case because the respondent never participated in the trial. This is not a situation in which he is seeking a second run at the trial because he never had the opportunity in the first instance. The policy concerns are not brought into play.
[19] The second approach suggested by both counsel is based upon the considerations for setting aside a default judgment.
[20] There is no provision in the Family Law Rules, O. Reg. 114/99 permitting the court to set aside a judgment. (I am cognizant of r. 25(19) but I find it not applicable in these circumstances.) Rule 1(7) of the Family Law Rules, however, states that if a matter is not adequately covered by these Rules, the court may look to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by analogy. Rule 52.01(3) of the Rules of Civil Procedure permits the court to set aside a judgment against a party who failed to attend at trial on such terms as are just. (See, for example, Gray v. Rizzi, 2010 ONSC 2868, 2010 CarswellOnt 7120 (S.C.J.), affirmed 2011 ONCA 436, 2011 CarswellOnt 4263 (C.A.).)
[21] The case law is well settled on the criteria required to be met. The party seeking relief must:
explain the failure to attend at trial in a satisfactory manner;
demonstrate that the underlying claim or defence has merit; and
explain any delay in seeking relief
(Gomes v. Poulos, 2015 ONSC 5355 at para. 2).
[22] I find these parameters a good starting point to assist in exercising my discretion.
[23] It is conceded that the respondent moved quickly. He retained counsel and brought his motion within a month of the conclusion of the trial.
[24] With respect to the respondent’s explanation for his failure to attend, I find it singularly inadequate. He says he was befuddled by the Family Law Rules and procedures once he became self-represented. With the high percentage of self-represented litigants, courts are becoming less patient with this type of excuse.
[25] In a case where a litigant failed to show for trial with the excuse he did not know about it, J.R. Henderson J., in Morningstar v. Holley, 2011 ONSC 5921, wrote at para. 11:
11 … if the Applicant was truly unaware of the status of the proceedings, I find that he could have, with minimal effort, made himself aware of the status of the proceedings. This court expects self-represented litigants to make some modest efforts to keep themselves apprised of the status of the proceedings. …
[26] In the present case, the respondent did not have to face complex Rule procedures. At the end of August, he was called to trial. He had just lost his counsel and could very easily have attended the trial readiness court on September 6 to explain his situation to a judge. He most likely would have been given time to retain counsel, failing which, to prepare for trial. This could have been done with modest effort.
[27] Instead, he sent an email to the trial coordinator saying he was going away and would not be attending trial or preparing for one. He repeated his refusal to attend trial in November when contacted. Further, despite his stated desire to Ms. Barr to speak to a judge, he did not appear at trial.
[28] Taken with his lack of cooperation with Ms. Barr, and his refusal to accept communications from her, I can only conclude that he intentionally did not appear at trial and therefore has no explanation of why he failed to appear.
[29] The third consideration is whether his claim has merit. At this point, I restrict myself to the respondent’s claim for spousal support only. As I indicated above, the respondent’s affidavit was sparse but it highlighted three important facts concerning this claim. First, the parties had a long marriage of 32 years. Secondly, there is a vast discrepancy in the parties’ incomes. The applicant earns $300,000 (her 2015 income tax return filed in the trial record discloses a line 150 income of $301,026) and the respondent, who is retired, collects Canada Pension of $473 per month. Finally, the respondent deposes that he is dependent on the applicant and that he intended to pursue his claim. I also note from the endorsement record that the parties entered an interim separation agreement dated January 5, 2015 which subsequently formed part of an interim order. By its terms, the applicant agreed to pay support to the respondent in the amount of $2,260 biweekly in exchange for the respondent assuming responsibility for certain household bills.
[30] The respondent’s claim for support is being brought under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] and these are all relevant considerations in ss. 15.2(4) and (6) when determining spousal support.
[31] Taking into account the facts as deposed and the relevant provisions of the Divorce Act, I find that the respondent can establish an arguable right to spousal support and, to that extent, his claim has merit. I observe as well that if entitlement is established, the quantum of support would be significant.
[32] The analysis, however, does not end there because of the unique facts of this case. My discretion should not be limited to the three considerations for setting aside a default judgment.
[33] In Davis v. Morris, 2006 CanLII 8196 (ON CA), 2006 CarswellOnt 1623, 264 D.L.R. (4th) 193, the Court of Appeal was asked to set aside a default judgment when the appellant’s pleadings were struck for non-compliance with a disclosure order. On the return date of the motion to strike, the appellant’s counsel obtained an order removing himself as his solicitor. The appellant was not in attendance and said he was unaware of the motions.
[34] Justice Rouleau, for the court, reviewed the facts against the criteria for the setting aside of a default judgment. However, his analysis did end there, as he concluded that, given the nature of the proceedings, “procedural fairness” was a central concern.
[35] At para. 21, he wrote:
21 Because the present case is not a default judgment in the traditional sense, and is more in the nature of a sanction being imposed for not complying with an order, procedural fairness is also to be taken into account. As set out in rules 2(2) and 2(3) of the Family Law Rules, the primary objective of the rules is to enable the court to deal with cases justly. This includes ensuring that the procedure is fair to all parties.
[36] Similarly, in the present case, the analysis cannot be confined to the test for setting aside a default judgment. This is not a “default judgment” in the traditional sense, if only because I am not functus. This suggests a lower threshold for the exercise in discretion than in cases where judgment has been issued and an order entered. Further, although the respondent’s claim was dismissed as a natural consequence of his failure to prosecute his case and not sanction, he has a meritorious case and there would be a serious miscarriage of justice if it did not proceed. Procedural fairness requires that he be given the opportunity to put his case forward.
[37] I acknowledge that r. 2(4) requires parties to help the court promote the primary objective in r. 2(2). Ms. Barr correctly points out that the respondent’s conduct falls far short of his obligation in r. 2(4). However, if the courts refused a litigant their day in court because they have been disrespectful, insulting, unreasonable, uncooperative or short-sighted, on those grounds alone, they would be empty. In the end, his conduct may be redressed by an appropriate order for costs.
[38] In the context of r. 2(2), I have also considered the fact that until the matter was called for trial in September 2016, the respondent had pursued his claim for spousal support. In fact, in the applicant’s draft order presented during the trial, provisions for spousal support were contemplated. The applicant proposed support in the amount of $4,506 per month based on an average income for the applicant in the amount of $158,770 per month.
[39] Finally, aside from the support order itself, I find it difficult to see how the applicant is prejudiced. The matter would simply be opened to permit the respondent to proceed with his support claim and I so order.
[40] With respect to the applicant’s claim related to property and an equalization payment, I am not prepared to reopen that portion of the case. The equities do not persuade me in the respondent’s favour.
[41] Looking at the applicant’s case in isolation, it proceeded from claims within her application. Although the respondent also pleaded an equalization payment, the same issue was before the court. The respondent chose not to oppose the applicant’s claims and, in that respect, did so at his peril.
[42] There is actually little discrepancy between the parties’ respective net family property calculations. The only significant issue is the tax treatment on an asset. The respondent’s counsel believes this could be addressed merely with reference to case law. I respectfully disagree because to deal with it properly will require expert evidence. I am not prepared to open the case.
[43] I note further the tax issue was only raised in argument. There was nothing in the respondent’s affidavit that made any reference to the property issues. On that basis, I find it difficult to determine the merit of his position.
[44] Therefore, an order shall go setting aside my endorsement dismissing the respondent’s claim for support, reopening the trial and permitting the respondent to place before the court his case on the issue of spousal support and costs only. This will be followed by the applicant’s response and reply, if necessary. This matter is adjourned before me on Tuesday, March 7, 2017 at 9:30 a.m. to make arrangements for the hearing.
[45] The parties may make short submission regarding the costs of this motion within 30 days.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: February 3, 2017