Court File and Parties

COURT FILE NO.: FS-17-91157-00 DATE: 2018 12 11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Agnes Akomani, Applicant AND: Jesse PaPa-Yaw Kay, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Agnes Akomani, In Person Adela Crossley, Counsel for the Respondent

HEARD: November 30, 2018

Endorsement

The Issue

[1] Mr. Kay seeks an order setting aside a divorce granted to Ms. Akomani on April 9, 2018.

Authorities

[2] In Flowers v. Flowers, 2015 ONSC 6385, I said:

[10] Section 25(19) of the Family Law Rules provides as follows:

CHANGING ORDER – FRAUD, MISTAKE, LACK OF NOTICE

19. 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.

[11] In Bargiel v. Mainville, 2012 ONSC 7229, Pelletier J. explained:

9. Counsel are in agreement as to the applicable legal standard in relation to a motion to set aside a default judgment. Three issues must be examined:

   • Whether the motion to set aside the default judgment was made as soon as possible following the moving party’s discovery of the judgment;
   • Whether the moving party has established that there exists a sufficient explanation for the default;
   • Whether the moving party has set forth sufficient evidence to establish that there is at the very least an arguable case to present on the merits.

10. It has been held that the test is disjunctive however that the Court is required to consider each criteria in its assessment, contextually conducted, of how to best balance the interests of the parties. [Citations omitted.]

[12] In Mountain View Far Ms. Ltd. v. McQueen, 2014 ONCA 194, at paras. 47-51, Gillese J.A. sets out the test for setting aside a default judgment as:

The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski.

The court must consider the following three factors: a) whether the motion was brought promptly after the defendant learned of the default judgment; b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and c) whether the facts establish that the defendant has an arguable defence on the merits.

To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd.: d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and e) the effect of any order the court might make on the overall integrity of the administration of justice.

These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality. [References removed]

Background

[3] The most significant issue between the parties is whether they were in fact married. Ms. Akomani says that they were married July 19, 2014. Mr. Kay says that they have never been married.

[4] The materials are thick with evidence, both admissible and inadmissible, on this issue. I cannot determine if the parties are married or not on these materials alone. It is certainly an arguable case for both sides.

[5] The history of the litigation is important for the purposes of considering the various factors set out above.

[6] The parties had been involved in litigation with respect to custody and support of their two children in the Ontario Court of Justice. The trial was heard in May and June of 2017 and a decision was released September 19, 2017. That decision granted Mr. Kay custody of the children. Ms. Akomani was to have supervised access. Importantly, the decision also allowed Mr. Kay to arrange international travel for the children without the need to obtain permission from Ms. Akomani.

[7] Ms. Akomani appealed that decision and the matter came before Justice VanMelle on December 11, 2017, for interim relief pending the appeal. At that time, along with other issues, she endorsed:

The appeal is from Justice Sullivan’s order of September 19/17. In that order he dismissed her claim for spousal support and gave permission for the father to take the children out of the country from December 28/17 to January 29, 2018. I cannot rescind this relief on an interim basis.

[8] That is to say, she left Sullivan J.’s order in place.

[9] On December 28, 2017, Mr. Kay left with the children for the judicially approved trip. On the same date, Ms. Akomani issued her application for a divorce, equalization of net family property, sale of the home and costs.

[10] On January 15, 2018, she filed a motion for substituted service. In her supporting affidavit, she said:

2. I have tried to service the Application on the Respondent to no avail. The Respondent is currently staying in Ghana, and is evading service of same.

3. While the Respondent is in Ghana, the affiant have made consistent efforts to serve him by special service as required by the Rules. The Applicant is unable to locate the whereabouts of the Respondent in Ghana.

4. I verily believe that the Respondent is evading service. He is deliberately avoiding, and hiding so it is quite impossible to serve him.

[11] On January 23, 2018, Ms. Akomani filed a further affidavit. There she said:

12. The Respondent has not seen the children, namely MCKAYLA EWURA-ESI KWARTENG, born October 27, 2013 and ROSEMARY KUKUA KWARTENG, born October 8, 2014, since December 17, 2017.

13. The Respondent’s travel to Ghana, with the children, has adversely affected the Applicant mother’s right to access.

14. The Applicant’s travel to Ghana, with the children, to Ghana, and did not return back to Canada, has adversely affected and caused disruption to the children’s education and school curriculums in Canada.

[12] Ms. Akomani’s affidavits make no reference to the fact that Mr. Kay was in Ghana pursuant to a court order and was expected to return in January.

[13] Based on those incomplete materials, Ms. Akomani obtained an order for substitutional service upon Mr. Kay.

[14] Mr. Kay became aware of the divorce application and on March 9, he served Ms. Akomani with his motion to extend time to file an Answer.

[15] Despite that information, Ms. Akomani filed further affidavits dated March 8, 2018, and March 12, 2018, to obtain her allegedly undefended divorce. In those materials, she set out the usual Affidavit for Divorce information and why she was not able to obtain her Registration of Marriage.

[16] Without any notice to the court of Mr. Kay’s efforts, the divorce was granted April 9, 2018.

[17] To complete the filing relevant to these issues, it appeared that the property claims had been resolved by an accepted offer dated September 9, 2018. However, Ms. Akomani submits that the matter has not been settled and she wishes to continue her claim for an equalization. Whether the parties were married or not may make a difference to that claim if, on a further motion, it is allowed to proceed. For now, I only deal with the divorce.

Analysis

[18] Based on the history above, at the very least, the order should be changed to deal with a matter that was before the court but not decided: whether the parties were in fact married and whether a divorce was necessary.

[19] The motion for the divorce was certainly made without notice. At best, it was mistaken because insufficient information had been provided to the judge. At worst, it was obtained by fraud. Substitutional service was not necessary; I am confident that such an order would not have been granted if all of the necessary information had been provided by Ms. Akomani.

[20] I find that Mr. Kay brought the matter before the court promptly after he learned of the default judgment. Indeed, he had already filed a motion to extend time to file his Answer before the judgment was granted.

[21] Mr. Kay’s excuse and explanation for his default is the conduct, intentional or unintentional, of Ms. Akomani.

[22] As set out above, there is certainly an arguable defence on the merits. I cannot and need not make a determination of who is lying to the court about these issues. I need only find that there is an issue to be determined.

[23] There will certainly be prejudice to Mr. Kay with respect to any ongoing property claim if the judgment is allowed to stand. Mr. Kay has been married to another woman since February 2015. Two marriages would cause obvious problems for him.

[24] Ms. Akomani has amended her Application to include a claim for a constructive trust interest in the home that the parties shared. This argument would only apply if the parties were not married. If it is determined that the parties were married, that may well shorten her Application and be of benefit to her.

[25] Finally, given the conduct of Ms. Akomani by moving before the court without full disclosure, it would certainly detrimentally affect the overall integrity of the administration of justice if the judgment were allowed to stand.

Result

[26] Accordingly, Mr. Kay’s application is granted and the divorce judgment dated April 9, 2018, is set aside. Mr. Kay may continue with his Answer denying the marriage alleged by Ms. Akomani.

Costs

[27] Mr. Kay sought an order for costs on a full recovery basis and an order that Ms. Akomani not be allowed to take any further steps in the proceedings until any ordered costs were paid. Those orders could not be dealt with until the result set out above. I shall deal with those matters in writing.

[28] Mr. Kay shall provide his written submissions with respect to both issues within 30 days. Ms. Akomani shall have a further 30 days to respond to those submissions. There shall be no reply submissions unless I request them.

[29] Each submission shall be no more than five pages, not including any Bills of Costs or Offers to Settle.

[30] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.

Lemon J. Date: December 11, 2018