Court File and Parties

COURT FILE NO.: 303-18 DATE: 2020-10-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria Zia, Applicant AND: Zafar Ahmad, Respondent

BEFORE: The Honourable Madam Justice C. Lafrenière

COUNSEL: D. Dayal, Counsel, for the Applicant Respondent, Self-Represented

HEARD: August 5, 2020

Endorsement – COVID-19 Protocol

[1] AS A RESULT OF COVID-19, this endorsement is made pursuant to the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media from the Chief Justice of the Ontario Superior Court of Justice, issued May 13, 2020 and the Notice to the Profession, Litigants, Accused, Media and Members of the Public from the Chief Justice of the Ontario Superior Court of Justice, issued June 25, 2020. This endorsement is also made pursuant to the Protocol regarding Family and Child Protection Matters in Central South Region from Regional Senior Justice Arrell, issued April 7, 2020 and the Notice to the Profession in Central South Region from Regional Senior Justice Arrell, issued June 26, 2020. The Notices and Protocol can be found at the Ontario Superior Court of Justice’s website (ontariocourts.ca/scj) and/or at the Hamilton Law Association’s website (hamiltonlaw.on.ca). As referenced in the above Notices, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020 and until further notice. Electronic materials were filed through the Courthouse email address. Upon the resumption of Court operations all materials shall be duly filed by the parties in the physical record at the Courthouse.

[2] This is the Respondent’s motion to set aside the default Order I made on January 17, 2020.

[3] The Respondent’s motion was argued on August 5, 2020 by way of video conference. On that date, I reserved my decision.

[4] This is my decision.

[5] For ease of reference, I will refer to the parties by their first names: Maria and Zafar.

[6] Maria’s application is dated March 6, 2018. The application was served on Zafar on April 3, 2018. Zafar did not file an answer. Maria claimed spousal support; an equalization of the net family property; exclusive possession of some of the contents of the matrimonial home; return of her belongings; an Order requiring Zafar to maintain her as his beneficiary on his life insurance and his health benefit coverage; and costs.

[7] Maria amended her application. The amended application is dated May 29, 2018 and was served on Zafar on June 22, 2018. Zafar did not file an answer to the amended application. Maria amended the application to claim a divorce.

[8] On January 23, 2019, Maria filed a form 23 affidavit seeking a Final Order on an uncontested basis.

[9] The matter came before me in chambers on February 1, 2019. On that date, I noted the husband in default. I endorsed the matter to proceed by way of an oral hearing and required Maria to file a Net Family Property (“NFP”) Statement in support of her claim for an equalization payment.

[10] The hearing was scheduled for May 27, 2019. On that date, Maria sought an adjournment as she wanted to consider further amending her application. I granted her leave to amend her application again. I scheduled the hearing to resume on August 26, 2019.

[11] On August 26, 2019, Maria’s counsel advised the Court, Maria had decided not to amend the application a second time.

[12] I found the background facts were as follows:

i. The parties were married on December 16, 2009 in Lahore, Pakistan; ii. Zafar was living in Canada and sponsored Maria to come to Canada; iii. Maria arrived in Canada on November 29, 2011; iv. The parties separated on November 16, 2015; v. The parties do not have children; vi. The parties participated in Arbitration through their Ahmadiyya Muslim community in or about March 2016; vii. The Arbitration Award was issued on August 13, 2016; and, viii. Zafar was ordered to pay $10,000.00 to Maria towards the Mehar as fixed in their marriage certificate and $3,750.00 in three monthly instalments of $1,250.00 towards divorce and habitation rights as Maria was two months pregnant at the date of separation. Maria suffered a miscarriage after the parties’ separation. Zafar was also ordered to return Maria’s household items and jewelry as set out in a list she provided to the arbitrator. Zafar paid the $10,000.00 and $3,000.00 of the $3,750.00. Maria says he did not return her belongings or jewelry.

[13] Zafar acknowledged receipt of both the application and amended application at the hearing of his motion to set aside my Order.

[14] Zafar initially submitted he had not received the amended application however during the hearing, when Maria’s counsel referred to the Affidavit of Service attached to Maria’s affidavit sworn July 28, 2020, Zafar said he received the amended application. He said he had been referring to the Form 23C affidavit that Maria filed in January 2019 with the Court for an uncontested hearing.

[15] I received Maria’s Form 23C affidavit in chambers and noted Zafar in default on February 1, 2019. I asked Maria’s counsel to schedule a hearing before me to deal with the claims in the application and the amended application. The hearing concluded on January 17, 2020.

The Law

[16] The law is well-established regarding setting aside default judgments.

[17] In the case of A.C. v. T.D., 2019 ONSC 2815, Justice Newton stated as follows at paragraphs [12] through [14]:

[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] O.J. No. 2971, 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; [page 568] (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] O.J. No. 1685, 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.

[18] In Gajic v. Lazeo, 2019 ONSC 4690, Justice Bale stated at paragraphs [45] through [52]:

[45] The primary objective of the Family Law Rules, O. Reg. 114/99, as outlined in r. 2(2), is to deal with cases justly. Rule 2(3) prescribes that dealing with a case justly includes ensuring that the procedure is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and, giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[46] The Family Law Rules are intended to be a complete procedural code. As the Court of Appeal stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[47] Rule 25(19) of the Family Law Rules provides that the court may, on motion, change an order that: (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.

[48] Recent caselaw confirms that the remedies available to the court under r. 25(19) of the Family Law Rules are broad, including jurisdiction to: (a) set aside the whole of a Final Order: Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65 at paras. 26-27; (b) “change”, “vary”, “suspend”, or “discharge” a Final Order: Gray, at paras. 26-27; (c) set aside part of a Final Order: Benarroch v. Abitbol et al, 2018 ONSC 5964 at para. 28; (d) correct or add to a Final Order: Benarroch, at para. 29.

[49] Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, has set out the following factors for the Court to consider when determining whether to set aside a default order or judgment:

1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;
2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;
3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;
4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;
5. The effect of any order the motion judge may make on the overall integrity of the administration of justice.

[50] In Mountain View Farms, the Ontario Court of Appeal explained at para. 50 that “these 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] In assessing whether there is an arguable case on the merits, the motion judge must take a “good hard look at the merits” and analyze whether the moving party has established an arguable case. It is not an error to assess credibility at this stage; more is required than self-serving statements devoid of detailed evidence supporting key assertions: “a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence”: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894 at para. 28.

[52] While there is broad discretion and flexibility under the Family Law Rules, and under r. 25(19) in particular, at least one of the five preconditions outlined in Mountain View Farms must be engaged before the broad judicial discretion under r. 25(19) of the Family Law Rules can be invoked: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70.

[19] I agree with the statements of law set out by Justices Newton and Bale.

[20] Rule 25(19) of the FLR which provides for changing orders on account of mistake or fraud:

CHANGING ORDER – FRAUD, MISTAKE, LACK OF NOTICE

25(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.

[21] I find the following factors are to be considered when determining whether to set aside a default Order or judgment:

a) After learning of the Order, the moving party must move promptly to have it set aside. b) The moving party must provide an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules. c) The moving party must establish an arguable case on the merits. d) The moving party must act in good faith and must come to Court with “clean hands." e) The Court should consider the prejudice that may be suffered by the moving party if the motion is dismissed and the responding party if the motion is allowed. f) The ultimate determination is whether the interests of justice favour setting aside the judgment.

See: Scaini v. Prochnicki, 2007 ONCA 63, 2007 CarswellOnt. 408 (Ont. C.A.); O’Donnell v. Davis, 2012 ONCJ 36; Ontario (Family Responsibility Office, Director) v. Dick, Peterbilt of Ontario Inc. v. 156567 Ontario Ltd., (2007), 2007 ONCA 333, 41 C.P.C. (6th) 316 (Ont. C.A.).

[22] The Court may exercise its discretion to set aside the default judgment even if all of the factors are not present.

Zafar’s Submissions

[23] Zafar stated he became aware of the Final Order on February 28, 2020 and brought his motion to set aside the Order in March 2020.

[24] Zafar stated he did not respond to the application or the amended application because he did not know what to do.

[25] He also submitted that it would not be fair if he is not allowed to put his side of the story before the Court.

Maria’s Submissions

[26] Zafar has not produced any financial disclosure, a Financial Statement or a Net Family Property Statement. Further, he has not provided a draft Answer.

[27] Zafar’s submission that the issues between the parties were before the community Court is not accurate. The award was made in August 2016 and the parties were advised to attend Court to secure any further relief.

[28] When the Application was served the arbitration proceeding had already been concluded.

[29] After Zafar was served with the amended application seeking a divorce judgment, he attended upon the Jamad and provided a copy of the certificate for divorce. Maria says she was not served with the divorce application and was not aware that a divorce judgment had been made until after she amended her application.

[30] Maria submits that it cannot be a coincidence that Zafar transferred his interest in the matrimonial home less than one month after being served with Maria’s application.

[31] The only part of the test Zafar can be said to meet is that he acted promptly to set aside the Final Order.

[32] He has no reasonable excuse or explanation for his failure to respond to the application or the amended application.

[33] He has not established that he has an arguable defense on the merits.

Analysis and Discussion

[34] When the test Zafar must meet is considered and applied to the facts before the Court, Zafar can only satisfy one factor: he acted promptly after he became aware of the Final Order.

[35] He has not provided an adequate explanation for his failure to respond to the application in accordance with the Family Law Rules.

[36] He has not established an arguable case on the merits, and he has not provided any financial disclosure and thus has not put his best foot forward and is arguably not coming to Court with clean hands. His motion must fail for these reasons.

Order

[37] Zafar’s motion is dismissed.

[38] Maria has successfully defended Zafar’s motion to set aside my Order. She is presumptively entitled to her costs. If the parties cannot resolve the issue of costs, written submissions may be filed as follows:

i. Maria may serve and file written submissions of no more than 3 pages plus a Bill of Costs and any Offers of Settlement by November 6, 2020; ii. Zafar may serve and file written responding submissions of no more than 3 pages plus a Bill of Costs and any Offers of Settlement by November 20, 2020; and, iii. Maria may serve and file reply written submissions of no more than 1 page by November 27, 2020.

Date: October 22, 2020