Court File and Parties

COURT FILE NO.: FS-18-5337

DATE: 20190103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Solomon Patrick Roberts, Applicant

AND:

Julie Anne Santilli, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Audrey Lee, for the Applicant

HEARD: Motion without notice, in writing

ENDORSEMENT

[1] This motion raises issues regarding default judgment and motions for uncontested trials in family proceedings. The applicant commenced an application dealing with support and equalization which was served on October 2, 2018. The respondent did not file an answer within 30 days as required by the Family Law Rules. There was no further correspondence with the respondent. The applicant simply brought a Rule 14B Motion in writing, without notice, seeking to note the respondent in default and to proceed to an undefended trial. This is not an appropriate route.

[2] The Family Law Rules have as their primary objective to deal with cases justly, including by ensuring that the process is fair to all parties, and cases are dealt with expeditiously, cost-effectively, and proportionately. All parties and their lawyers have a duty to promote the primary objective. In a case like this, the Court needs to be assured that the respondent has received proper notice, and has no intention of defending a case. Parties must take appropriate steps to assure the court that the respondent has received notice, and has the opportunity to respond, rather than proceeding to an undefended trial that may ultimately be set aside with resultant cost and delay.

[3] If a respondent does not file an answer within the time prescribed by the Rules, then counsel or a party should write to the respondent indicating the requirements of the Rules, and setting out clear steps such as a case conference. I suggest that applicants should refer self-represented respondents to “A Guide to Process for Family Cases at the Superior Court of Justice”, at www.ontariocourts.ca/scj/files/pubs/guide-family-cases-EN.pdf, and the resources available at the Family Law Information Centres (FLICs) at each Superior Court of Justice where family cases are heard. The applicant may also schedule a case conference, on notice to the respondent, to get the matter on track. These will generally be more productive steps than proceeding immediately, without notice, for an undefended trial. This is particularly the case where the matter was commenced recently, and there has been no contact between the parties indicating that the respondent is aware of the proceeding and has no intention to defend.

[4] After attempting to communicate with the respondent, if the applicant intends to seek an undefended trial, then the best practice is to serve the motion materials on the respondent. As stated by Sanfilippo, J. in Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083 (SCJ) at para. 13, “Proof of the defaulting defendant’s knowledge of the claim is critical to two elements: the legitimacy of the court’s rendering of the judgment, and the ability of the judgment to withstand challenge on the basis of lack of notice.” Sanfilippo, J. states at para.14-16 in the context of a civil case, which I find equally applicable in a family case:

[14] In serving the default judgment motion materials, or the Trial Record in the case of an uncontested trial, the plaintiff is re-affirming the service of the Statement of Claim to leave no doubt that the court is in a position to render judgment in the absence of the defendant. That is not to say that this is necessary in all cases. There are undoubtedly some cases where the service is so clearly established, where the election by the defendant not to respond to the proceeding is so evident, so purposeful that it would be unnecessary to require that the defendant had notice of the motion for default judgment or hearing of an uncontested trial. In such a case, Rule 19.02(3) operates to relieve the plaintiff from the requirement to provide any further notice and denies the defaulting defendant the opportunity of further participation.

[15] However, Rule 19.02(3) provides the judge with discretion to order that the defendant in default knows something more: not only that a claim has been advanced but also that the claim is about to be considered by a court for the purpose of issuing judgment. By providing notice that the claim is about to be considered by a court, the plaintiff satisfies the court of both the validity of the service of the Statement of Claim, which is effectively replicated through service of the motion materials or trial record filed to obtain default judgment, and that the defendant has made a purposeful decision not to contest judgment.

[16] This is why “by far the better practice” is to provide the defaulting defendant with the material necessary to understand, without doubt, that the claim for judgment against the defaulting defendant is about to be determined. Where the plaintiff has not followed this practice, the court must consider whether the interests of justice, and of procedural and trial fairness, demand that the court’s discretion be exercised in favour of requiring notice to the defaulting defendant. The court must balance the plaintiff’s entitlement to proceed without participation of the defendant who has elected to abstain against the defendant’s entitlement to have sufficient notice on which to make this election.

[5] I decline to note the respondent in default or order an undefended trial, and I dismiss this motion.

[6] The applicant is to serve this endorsement on the respondent, together with a copy of “A Guide to Process for Family Cases at the Superior Court of Justice.” The applicant is to book a Case Conference and serve the respondent with the notice, at least 15 days in advance of the Case Conference. The respondent, should she wish to file an answer, must do so by January 31, 2019.

Justice Kristjanson

Date: January 3, 2019