ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
NIGHAT NAVID SAMSON
Self-Represented
Applicant
- and -
SAMUEL NAVEED SAMSON
Respondent
Self-Represented
HEARD: January 28, 2021, in writing
ENDORSEMENT
MCSWEENEY J:
Overview
1This is an unusual 14B consent motion to change a final order. Both the Applicant (“the wife”) and the Respondent (“the husband”) have filed affidavits in support of the relief requested. Neither is represented. The final order they wish to change is the June 16, 2020 divorce order of Tzimas J..
2The parties were married in 1996, separated in 2018, and reconciled during the COVID-19 pandemic in May 2020. They want to stay married.
3Although the wife had filed for a simple divorce which was set down in January 2020, the reconciled during the early months of the COVID-19 pandemic. By May 2020 they were once again living as husband and wife, and the wife signed a declaration regarding their reconciliation on June 9, 2020, in which she asked to withdrew the divorce application. Unfortunately, the process server engaged to file the affidavit did not do so. The court was therefore unaware of the parties’ reconciliation when the divorce was granted.
4The parties move on consent to have their divorce order set aside.
CHRONOLOGY:
5Each party filed an affidavit. Relevant dates in the evidence are as follows:
| Date | Notes |
|---|---|
| January 5, 1996 | Parties’ marriage |
| 1998 and 1999 | Parties’ children born |
| October 31, 2018 | Date of separation – wife moves out of matrimonial home |
| November 7, 2019 | Application for Simple Divorce issued by wife |
| November 18th, 2019 | Wife’s Divorce Affidavit sworn, Application served on husband. |
| Dec 23, 2019 | Wife returns to live separate and apart from husband in the matrimonial home |
| March 15, 2020 | Notice to Profession re: suspension of regular court operations effective March 17, 2020 due to COVID-19 pandemic |
| April - May 2020 | Husband suffers stroke and requires extensive help; parties reconcile |
| June 9, 2020 | Wife’s affidavit confirming reconciliation and requesting withdrawal of divorce application |
| June 11, 2020 | Law firm directs process server to file wife’s affidavit with Brampton Court |
| June 16, 2020 | Divorce Application granted; divorce order dated June 16, 2020 |
| July 2020 | Parties receive the Divorce Order |
| September 2020 | Parties’ inquiries of law firm confirm that the court did not receive their withdrawal request |
| October 17, 2020 | Parties file consent motion to set aside divorce order |
Additional facts:
6On December 23, 2019, the wife returned to the matrimonial home. Initially, she and the husband were living separate and apart. In April 2020 the husband suffered a stroke and lost sight in one eye. The wife became the primary caregiver for the husband, who required extensive care and assistance with all aspects of his self-care.
7As the wife assumed caring for her husband, the parties’ marital relationship was rekindled. Both parties’ evidence affirms that by May 2020 they had reconciled and were living as husband and wife.
8Once the parties reconciled they wanted to withdraw the divorce application. The wife deposes that she met with a lawyer on June 9, 2020. Her affidavit of that date, commissioned by the lawyer, states clearly “I, NIGHAT NA YID SAMSON [sic], filed for Simple (Divorce Only) on November 7, 2019. On January 20, 2020 I filed the set down in the matter of my Simple (Divorce Only). Recently my spouse has suffered extremely grave health concerns and we have therefore decided to reconcile and wish to have our divorce proceedings cancelled. The court has not granted my divorce yet.”
9The wife’s affidavit includes as an exhibit a memorandum dated June 11, 2020 from the law firm to its process server agent, requesting filing of the wife’s affidavit in Brampton Court. The court record indicates no materials were received by the Brampton Court at that time.
10After receiving the divorce order, the wife made inquiries about what happened to her affidavit. In September 2020 she learned from the law firm that the process server never delivered her affidavit to the court.
11I find as fact that the Applicant’s affidavit of June 9, 2020 was not received by the court, and was therefore not before the judge who reviewed and granted the uncontested divorce application and order in this file on June 16, 2020.
12I further find on the evidence that on the date the divorce order was signed, the parties’ relationship had changed. They were once again living as husband and wife. Neither sought a divorce, and both believed that they had taken sufficient steps to have their application withdrawn.
13On October 17, 2020, the parties filed this consent motion in writing to have the divorce order set aside.
Issue: Does the court have jurisdiction to set aside the parties’ divorce order, and if so, is it appropriate to do so in these circumstances?
The Law:
14The unrepresented parties filed no law or argument on this motion. I must therefore, as a preliminary matter, identify the sources of the court’s jurisdiction to set aside a final order in a family law application.
15This court may change or set aside a final order in a family law proceeding:
(a) under Rule 25(19) of the Family Law Rules, with potential further recourse if necessary to Rule 59.06 of the Rules of Civil Procedure; or (b) pursuant to the court’s inherent common law jurisdiction to prevent a miscarriage of justice or to further the interests of justice. Each of these categories is considered below.
(a) Changing an order under Rule 25(19) of the Family Law Rules:
16A party may move to change a final order under Rule 25(19) of the Family Law Rules, which states:
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.
17The Ontario Court of Appeal has held that r. 25(19) includes “the authority to set aside an order”: Gray v. Gray, 2017 ONCA 100, at paras. 26-31.
18In the circumstances of this motion, the only potentially applicable part of r. 25(19) is subrule (b): mistake. A “mistake” in the context of r. 25(19)(b) has been held to include circumstances where a final order does not reflect the “common intention” of the parties”: Chuvalo v. Chuvalo, 2018 ONSC 5863, at para. 22; Stephens v. Stephens, 2016 ONSC 367, at paras. 30-36; Henderson v. Henderson, 2015 ONSC 2914, at paras. 103-109.
19I consider also that the wife’s application for a simple divorce was not contested by husband, was akin to an order made on consent. In that regard, jurisprudence relating to court decisions to set aside consent matters is also potentially relevant to the analysis. As described by the Supreme Court of Canada in Rick v. Brandsema, 2009 SCC 10, [2009] 1 SCR 295, “This rule reflects the reality that a consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances.” (citations omitted).
20Therefore, where a final order is essentially made on consent of the parties, as in this case, the jurisprudence suggests that where the parties’ agreement has changed, the parties’ mistake as to the materials that were before the court at the time their matter was disposed of, can justify setting aside the order.
21In this case, the evidence establishes that the parties had reconciled by the time the court reviewed and decided their application. Neither wanted to be divorced. Within the language of the law cited above, I find as fact that the final divorce order therefore did not reflect the “common intention” of the parties when it was signed. It may therefore be set aside on the basis of “mistake” by application of r. 25(19)(b).
22To be clear, it is not necessary in this analysis to find that the judge deciding the order made the wrong decision on the materials before her. To the contrary, the application for unopposed simple divorce before her was consistent with the relief sought in the materials and with the draft order filed by the wife in January 2020. The mistake arose from the parties’ failure to bring their reconciled status to the attention of the court in time for that evidence to be considered along with the application.
23Having found that the motion may be decided by application of the Family Law Rules, it is not necessary to invoke r.1(7) in order to consider Rule 59.06 of the Rules of Civil Procedure.
(b) Changing an order pursuant to the court’s inherent jurisdiction:
24As part of its inherent common law jurisdiction, the court may set aside a final order where required to prevent a miscarriage of justice. In West v. West, 2001 28216 (ONSC), Perkins J. described this jurisdiction as “ancient”, with its roots in old common law writ of audita querela. That was the writ by which a party could ask the court to set aside an adverse judgment where a factual basis to do so was identified after the order was made.
25With respect to procedure, the common law rules establish that a motion to change a final order on the basis of a newly identified factual basis must be made by motion within the same case, rather than by a separate action (West, para 19). The parties have therefore followed the appropriate procedure by seeking to set aside their divorce order by motion within their divorce application.
26In West, Perkins sets out the well-recognized and stringent criteria for the exercise of this jurisdiction: (i) The evidence presented on the motion must be clear and credible; (ii) it must be of such a nature that the original order would have been different if the evidence had been available at the time the order was made;
(iii) it must not have been in existence at the time the order was made or not discoverable by diligent effort by the party asking the court to change the order;
(iv) the party must have acted with diligence once the information came to light; (v)
and the evidence must establish that action is needed to prevent a miscarriage of justice (para 23).
27The exceptional nature of use of inherent jurisdiction to set aside final orders for mistake was recently confirmed by Kristjanson J. for the Divisional Court: “There is no question that the final orders were issued by mistake by the Registrar. As noted in Strugarova v. Air France, the court has a discretion to re-open a matter where the integrity of the process is at risk or a principle of justice is at stake that requires reconsideration. At para. 7, Roberts, J., as she then was, held: ‘While a court should re-open a motion or other matter sparingly and with the greatest of care, it may re-open it when it is just to do so in exceptional circumstances’” (Gayle v. Gayle, 2020 ONSC 5810 at para. 19).
28Applying the West analysis to this matter, with the first criterion I accept the parties’ uncontested evidence as clear and credible. With the second criterion, whether the new evidence would have changed the final court order, I have no difficulty in finding that, if the court had been advised that the parties had reconciled and were both asking to stay married, the result would have indeed been different: the divorce order would not have been granted.
29With respect to criterion (iii), whether the evidence was available or was discoverable by diligent effort when the order was made, the unusual circumstances are such that parties’ reconciliation happened in May 2020, just weeks before the court decided their divorce application. Reconciliation evidence was therefore not in existence until that time. Although the wife executed an affidavit by June 9, 2020, she was unsuccessful in bringing that new evidence to the court’s attention before her application was decided. In these circumstances, I find that her efforts were sufficient “diligent effort” to satisfy this criterion.
30In considering whether the parties proceeded diligently to bringing their motion to set aside the final order per West criterion (iv), the facts above indicate that they received the order in July 2020, which is the time the “information came to light” i.e. that the parties realized their divorce application had not been withdrawn, and that the order had been issued. However, they did not file the present motion until October 17, 2020.
31In considering whether the parties acted with reasonable diligence over that three-month period to set aside the final divorce order, I consider the contemporaneous impact of the pandemic as reflected in legislative enactments which suspended the application of limitation and other procedural time periods in court proceedings. With respect to federal legislation, section 6 of the Time Limits and Other Periods Act (COVID-19), S.C. 2020, c. 11, s. 11 provides as follows:
(1) The following time limits are, if established by or under an Act of Parliament, suspended for the period that starts on March 13, 2020 and that ends on September 13, 2020 or on any earlier day fixed by order of the Governor in Council made on the recommendation of the Minister of Justice:
(a) any limitation or prescription period for commencing a proceeding before a court;
(b) any time limit in relation to something that is to be done in a proceeding before a court; and
(c) any time limit within which an application for leave to commence a proceeding or to do something in relation to a proceeding is to be made to a court.
(2) The court may, by order, vary the suspension of a time limit as long as the commencement date of the suspension remains the same and the duration of the suspension does not exceed six months.
(3) The court may make orders respecting the effects of a failure to meet a suspended time limit, including orders that cancel or vary those effects.
32Per s. 12(1) of the Divorce Act, RSC 1985, c.3 (2nd Supp.), a divorce order takes effect 31 days after it is signed. It might be argued that pursuant to subsection 6(1) of the Time Limits and Other Periods Act (COVID-19), calculation of the effective date of parties’ divorce order signed June 16, 2020 did not begin to run until September 13, 2020. On such a calculation, the divorce order’s effectiveness date was not reached until October 14, 2020.
33The parties’ consent motion filed on or shortly after October 17, 2020. It is not necessary for me to determine on this motion whether s.6(1) does or may apply to divorce orders generally, and I do not do so, as the parties did not raise that issue. Further and in any event, the parties did not file this motion within the arguably extended timeline of October 14, 2020. The remedy they seek is based on their understanding that their divorce order was final and effective at the time they filed their motion.
34My consideration of the federal time limit legislation is, however, of contextual assistance. I concluded that in the circumstances, the fact that the parties moved to set aside the divorce order within three months of receiving their divorce order reflects diligence on their part as required by criterion (iv) of West.
35The final factor in the West analysis requires the courts to ask whether the exceptional remedy of setting aside a final order by invoking the court’s inherent jurisdiction is required in order to further the interests of justice. In my view, were the remedy of set-aside not available to this Court pursuant to the Family Law Rules, as concluded earlier, I would consider it appropriate to set aside the parties’ divorce order as a matter of inherent jurisdiction.
36In doing so, I would take into consideration that this couple were married in 1995 and raised a family together. Their materials emphasize the value they place on their reconciliation, and specifically on remaining married. It would therefore further both the interests of justice in this case, and be consistent with the court’s obligation to promote reconciliation “wherever possible”, to grant the relief sought: Fraser v. Fraser (1989), 1989 8839 (ON SC), 23 R.F.L. (3d) 30 (Ont. H.C.).
Conclusion:
37I conclude that the parties’ divorce order can be set aside on the basis of mistake pursuant to Rule 25(19)(b) of the Family Law Rules. Were it necessary to do so, the court’s inherent jurisdiction to change a final order in the interests of justice is also a basis to set aside the order.
38In reaching this conclusion, I have also considered the that the timing of this matter falls within the first few months following changes to court filing procedures necessitated by the global pandemic, and the consequent challenges for litigants, to access courts in a timely manner. I have also considered the serious illness of the husband which became the wife’s primary concern once the parties reconciled, such that she was not able to give full attention to other matters.
39I also consider the reality, underscored frequently in public discourse over the past year, that the pandemic has affected families profoundly. Some of those have been very negative, destabilizing effects. Others have found renewed meaning in personal relationships while living within pandemic restrictions. Given that the parties in this case reconciled during this unprecedentedly challenging period, I consider it appropriate for the Court to exercise its jurisdiction to grant the order requested, and by doing so, to affirm for this couple the continuing married status of their union.
Order:
40For the foregoing reasons, this Court orders as follows:
The divorce order of Justice Tzimas dated June 16, 2020 is hereby set aside;
This Court declares that the marriage entered into by the parties on January 5, 1995 continues in full force and effect;
The divorce application FS-19-96468 issued on November 7, 2019 is deemed withdrawn nunc pro tunc.
Neither party is represented. The Brampton Registrar’s office is requested to assist with preparation of a draft order which may be directed to my attention for signing. A copy of the issued order is to be sent to the Central Divorce Registry.
McSweeney J.
Released: May 6, 2021
COURT FILE NO.: FS-19-96468-00
DATE: 2021 05 06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
NIGHAT NAVID SAMSON
Applicant
- and -
SAMUEL NAVEED SAMSON
Respondent
ENDORSEMENT
McSweeney J.
Released: May 6, 2021