Court File and Parties
Court File No.: D26408/18 Date: 2019-04-24 Superior Court of Justice – Ontario
Re: Stephanie Renee Fahy, Applicant And: Paul Francis Fahy, Respondent
Before: Mr Justice Ramsay
Counsel: Claude Leduc for the Applicant William A. Melnychuk for the Respondent
Heard: April 24, 2019 at Welland
Endorsement
[1]
Motion to Set Aside
The Respondent moves to set aside my order of January 4, 2019 which was made after an uncontested trial. The Respondent had been noted in default. He was served with the notice of application but did not file an Answer.
2The parties married in 2009 and separated in 2017. They have one child, a son born in 2011. The parties agreed in writing in 2017 that the child would reside with the Applicant mother and visit the Respondent father three days a week, with an overnight visit on alternate Fridays. This seems to have worked until 2018. In March 2018 the Applicant filed for divorce and corollary relief. In August tension between the parties led to service calls to the police. In December 2018 reconciliatory communications passed between the parties. By December 2018 the relationship seems to have broken down altogether.
3The Applicant texted the Respondent on October 2, 2018 to say that she was withdrawing the Application. On October 22, 2018 Mr Leduc got a date for an uncontested hearing in view of the Respondent’s omission to answer. That day he wrote to the Respondent to tell him so and to offer to vacate the date if the Respondent decided to file material. The Respondent deposes that he did not get this letter. It was addressed to the Respondent at 7022 Briarwood Avenue, the matrimonial home. The front page of the affidavit of service has been provided. It lists the Respondent’s address at 4022 Briarwood Avenue. I conclude that he did not receive the letter. That set of facts alone is sufficient reason to set aside the order.
4In her affidavit for the uncontested trial the Applicant deposed that the Respondent does not currently have a fixed address. In fact, he was living at his girlfriend’s house, which the Applicant had visited the previous August, and where she had him served with my orders on January 24, 2019. That is another reason to set aside the order.
5Finally, in matters of child custody it is not desirable to have a decision made without the participation of both parents where it can be avoided: D.D. v. H.D., 2015 ONCA 409.
6My order of January 4, 2019 is set aside. My restraining order of the same date is dissolved.
[7]
Temporary Orders
In the meantime, I propose to make temporary orders meant to last until otherwise ordered on motion after the case conference. These orders should provide for the immediate concerns of the family. The Applicant’s security concerns strike me as exaggerated, although not baseless. Both parties have exhibited hostility. They need to cool off for a little while before they start working together to raise this child.
8I make the following temporary and procedural orders:
a. The child shall reside principally with the Applicant; b. The child shall reside with the Respondent every Tuesday and Thursday from the end of school to the beginning of school the next day. The Respondent shall pick up and deliver the child to and from school. If school is not in session the Respondent shall pick up the child from the Applicant’s residence. c. The parties shall communicate with each other through their counsel or through Family Wizard or comparable software, which may be arranged through counsel. d. Neither party shall remove the child from the province. e. The Office of the Children’s Lawyer is invited to participate. f. Costs of this motion are fixed at $750 and reserved to the trial judge.
J.A. Ramsay J.
Date: 2019-04-24