Court File and Parties
COURT FILE NO.: FS-18-144-00 DATE: 2019-05-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.C. Applicant
C. Marrello, for the Applicant
- and -
T.D. Respondent
W. Shanks, for the Respondent
HEARD: May 2, 2019, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Decision On Motion
Overview
[1] The father [^1] seeks an order setting aside the default order of October 29, 2018 and extending the time for delivery of his Answer, Financial Statement and Form 35.1 Affidavit.
The Facts
[2] The mother and father began cohabiting in June 2014. They have one daughter, born September 2014. They separated in January 2017.
[3] In an attempt to resolve some issues, particularly access, the parties, with counsel, attended a settlement conference in December 2017. Proposals for separation agreements were exchanged throughout the spring of 2018 but no settlement was reached. In the 18 months since separation to this point the father had made only three payments for child support totaling about $1,300.00.
[4] The father was served with this application on June 7, 2018 and advised mother’s counsel that he was retaining counsel but he did not do so.
[5] A case conference was held before me on August 29, 2018. The father had not retained counsel and had not delivered an Answer, Financial Statement, or Form 35.1. My endorsement from that conference is as follows:
August 28, 2018
This is a case conference. Mr. D appears unrepresented. Mr. D has not filed an answer but has indicated to me that he will do so. Applicant, Ms C. agrees to allow late delivery of the Answer on the following conditions:
- Answer and sworn Financial Statement and Form 35 to be delivered (served and filed) by September 14, 2018.
- Mr. D to make without prejudice payment of $440.00 for child support on or before September 14, 2018 directly to Ms. C.
- Sworn financial statement to attach 2017 ITR and notice of assessment and proof of 2018 YTD income.
Mr. D agrees to these conditions and this is therefore, a consent order.
On issue of child care expenses, Ms. Marrello will provide to Mr. D proof of expenses and will make a proposal for prorata sharing of this expense.
Ms. Marrello seeks costs of $300.00 for costs thrown away today because of the failure of Mr. D to file an answer as required by the rules. I order that Mr. D pay costs for today fixed in the amount of $300.00.
[6] I note that $440.00 for child support was paid in June, August, and September 2018.
[7] On September 14, 2018, the father hand-delivered to the mother’s counsel a letter indicating that he was in the process of retaining named counsel but could not meet with counsel until September 28, 2018 and also delivered an Answer marked “Draft” and a draft unsworn Financial Statement with a notice of assessment attached.
[8] Counsel agree that the proposed lawyer for the father was contacted to see if he had been retained and his office advised that he had not been.
[9] In default of any further action by the father, counsel for the mother arranged an uncontested trial. That trial was before me on October 29, 2018 and I made the following endorsement:
October 29, 2018
This is an uncontested application for custody and child support. Although granted an indulgence to allow late filing of an Answer, the respondent has not done so. See my endorsement made August 29, 2018.
Based on the affidavit of Ms. C and her testimony before me today I am satisfied that it is in A (4) best interests that sole custody be awarded to Ms. C. Although an informal access routine is in place, I agree with the submissions of Ms. Marrello that the order should be silent with respect to access given the failure of Mr. D to file the required 35.1 Form. I am satisfied that the child support clause is appropriate and in accordance with the guidelines. Therefore, order to issue as signed by me. Costs of the application fixed at $3,000.00 and are enforceable as incidental to child support.
Positions of the Parties
[10] The father argues that the order should be set aside. There are serious issues, including custody. Some latitude must be given for his noncompliance since he was a self-represented litigant.
[11] The mother argues that this is but another example of the father’s conduct in delaying and not cooperating and that, in any event, a review of the facts would lead to the conclusion that there is no reason to set aside the sole custody order.
The Law
[12] The parties agree, following Gray v. Gray, 2017 ONCA 100 that the appropriate procedure in this case is a motion under Rule 25(19)(e) of the Family Law Rules.
[13] The parties also agree that the test for setting aside a default judgment is as in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194:
[47] 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, 2012 ONSC 3836 (S.C.J.), at paras. 19-20 and 23-24.
[48] 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.
[49] 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. (2007), 87 O.R. (3d) 479, 2007 ONCA 333, at para. 2: (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 motion judge may make on the overall integrity of the administration of justice.
[50] 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.
[51] 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.
Analysis and Disposition
[14] I agree that the issue of custody/decision-making is one of the most important issues that the court must adjudicate upon and that, as a general proposition, a party should not be deprived of the right to participate in that adjudication absent serious misconduct.
[15] In this case, access is ongoing, although the father wishes to increase the access.
[16] I also agree with the mother’s concern that the father’s conduct demonstrates some deliberate attempt to delay dealing with issues. An unrepresented litigant must respect court orders and filing requirements. An unrepresented litigant has the same rights and obligations as a represented litigant, not greater rights. An excuse of “I did not understand” will seldom succeed especially in the absence of any evidence of attempts at compliance.
[17] Here, the delay is not great. The undefended trial proceeded within two months of the case conference. There was some attempt at compliance- the provision of the draft documents.
[18] I conclude that the motion was brought promptly and that there is a “plausible”, although not particularly good, excuse for the default.
[19] With respect to custody and access, these are important issues and while the father may not succeed I conclude that there is an air of reality to the claim and that the father should be heard.
[20] With respect to the financial issues, considering prejudice to both parties, I note that an annual review is required under the terms of the order. Along with this factor, I have also considered the overall integrity of the administration of justice. All litigants must abide by court orders and filing requirements. I have also considered the merits of the father’s argument regarding child support. Considering all the factors I conclude that the child support order should not be set aside. This would not preclude the father from the annual review of child support payable or preclude the father from bringing a motion to change.
[21] Therefore the order for sole custody is set aside. The father shall deliver his Answer and Form 35.1 within 10 days. The balance of the order of October 29, 2018 shall remain in full force and effect. The father shall pay the costs order from the case conference of $300.00 within 10 days.
[22] Paragraph four of the consent order of Smith J. dated March 14, 2019 is set aside.
[23] To expedite the custody and access application I shall remain seized as case management Judge. There shall be no questioning or motions without an order from me. I will determine, in consultation with counsel, when the matter is ready to proceed to the combined settlement/trial management conference. Case conferences are to be arranged through the trial coordinator and may be by teleconference if counsel agree.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: May 3, 2019
Notes
[^1]: Throughout these reasons nonspecific identifiers will be used to respect the privacy of the parties and their family.