KINGSTON COURT FILE NO.: 132/19
DATE: 20220112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ryan Albert Van Aman, Applicant AND Agnes Ngendo Mugo, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Beth Ambury for the Applicant Stephanie Okola for the Respondent
HEARD: December 14, 2021
ENDORSEMENT ON MOTION
[1] This is a motion by the respondent wife dated August 5, 2021 to set aside two default judgments following which she seeks numerous heads of interim relief in the resurrected proceeding. Only the request to set aside was argued before me.
Background Facts
[2] The parties married in 2013. They have two children Malia (9) and Preston (6). They separated in 2018.
[3] The applicant husband started this proceeding in March of 2019. In his Application he sought to have the children return to Ontario as the mother had taken them with her to Kenya without notice or consent.
[4] An order was made by Justice Robertson on April 11, 2019, on consent, that the children were habitually resident in Ontario and that they be returned to Kingston, and that upon returning they would reside primarily with the respondent mother. The order indicated at paragraph 6:
- After the children have been returned to Kingston, Ontario, neither party shall remove the children from the Province of Ontario without further consent of both parties or Court Order, such consent not to be unreasonably withheld.
[5] That order also provided for parenting time to the husband every Saturday at 10 am to every Sunday at 7 pm, plus daily telephone or video contact.
[6] The proceedings that followed are described by the husband as acrimonious and by the wife as lengthy and mired in conflict.
[7] Included in the litigation were two orders made on motions by the wife, granted on consent, that permitted her to travel to Kenya with the children, with specific departure and return dates. The first permitted travel from December 30, 2019 to January 16, 2020, and the second from January 31, 2020 to February 6, 2020. These related to the wife’s father (the children’s maternal grandfather) being ill.
[8] Around the time the pandemic was declared in March of 2020, the husband’s parenting time was reduced on consent to supervised at the Salvation Army Supervised Access Centre for one hour per week plus a half hour of telephone/Skype access twice per week.
[9] On October 1, 2020, an order was made on consent that the husband’s supervised access occur virtually through the Supervised Access Centre.
[10] On October 14, 2020 an order was made on consent at a Settlement Conference expanding the husband’s parenting time such that he would have in person visits with the children starting with alternate Saturdays for 9 hours for three visits, followed by alternate weekends from Saturdays at 10 am to Sundays at 7 pm, plus a mid-week Skype visit. This would have eventually resulted in a return to his parenting time under the April 11, 2019 order. Conditions were added around the exchanges. The matter was adjourned to a further Settlement Conference on January 15, 2021 to take place by Zoom. The wife was present with her counsel for that conference and therefore aware of the Settlement Conference date.
[11] A motion was subsequently brought by the husband followed by a cross-motion by the wife and both were argued on November 10, 2020. Minor changes were made to the previous order related to the exchanges, mid-week virtual visits, and the husband’s Saturday pick-up time, which was varied to 9:30 am (a half hour earlier) for what appears from the endorsement to be practical reasons. Per the endorsement, the wife’s position was seen by the court to be an attempt to impede the limited progress contemplated by the October 14, 2020 order, and she was ordered to pay the husband costs of $300. It is important to note that she was present with her counsel.
[12] Four days later, on Saturday, November 14, 2020, the husband attended for his next scheduled parenting time. The wife did not show. Instead she left for Kenya that morning with the children. She did not give the husband any indication or obtain his consent. She did not obtain a court order for permission. When they were in court earlier that week, she did not give any indication that she was leaving or make a request to leave.
[13] Before leaving the wife resigned her full-time employment at the Kingston hospital. She did not notify the school that the children would be absent.
[14] With the help of the police, the husband learned that the wife had left with the children for Kenya, and attempts were made to contact her at her email address.
[15] The details are in the court record, but the husband brought an urgent motion. On November 25, 2020 the wife was ordered to return the children. Her lawyer appeared but he indicated that he had no contact with his client and no instructions.
[16] On December 9, 2020, the wife’s lawyer sought to be removed as counsel of record for the mother, and his motion was granted unopposed.
[17] On January 11, 2021, having ignored several prior orders, the wife’s pleadings were struck, and the Settlement Conference date previously set for January 15, 2021 was vacated. There is no indication that the wife attempted to attend on that Settlement Conference date. If she did not know it was cancelled, she did not prepare and file a brief as required by the Rules. As noted, that was to be the second Settlement Conference on this file.
[18] The matter proceeded on an uncontested basis. The husband took steps to protect real property (he obtained a Certificate of Pending Litigation) and brought a motion to obtain third party records from three different banks.
[19] Around this time the husband indicates that he was contacted by the wife’s sister and brother. There is no evidence from them, and wife objects the husband’s account as to what was said as hearsay. There is no dispute, however, that they confirmed that the wife and children were in Kenya, which is not a signatory to the Hague Convention.
[20] On March 16, 2021, an uncontested trial was heard granting the husband sole decision making and primary residence for the children and again ordering the wife to return with the children at which time they would be placed in the husband’s care. The order was silent on the wife’s parenting time. The matter was adjourned to a further hearing date regarding property and support.
[21] On March 24, 2021 a second uncontested trial including viva voce evidence was heard and final orders were made regarding child support, spousal support, and property. Income was imputed to the wife. The order indicated that the issue of child support may be reviewed upon the return of the children. The property order is complicated and detailed.
[22] Soon after this time, the husband indicates that he was contacted by Global Affairs, whom he had kept in touched with, and in particular a Ms. Telahigue who advised that the wife had contacted them indicating that she wished to return to Canada but needed emergency passports for the children as they had expired. As the husband had sole decision making per the Final Order, it was thought that the passports needed to be authorized by him. He was agreeable to provide a signature or a statement to allow them to be issued on the condition that the passports would only permit travel to Canada, as he said he feared the wife would relocate with the children elsewhere. He indicates that before could provide his consent he was told that it wasn’t needed after all.
[23] On July 16, 2021, the wife with new counsel brought a motion without notice for substituted service on the husband. It was dismissed as the test in Rule 6(15) was not addressed.
[24] This motion is dated August 5, 2021 and was personally served on the husband on August 10, 2021. At that point the wife and children were still in Kenya. At the first return date on August 18, 2021, the wife advised that the children were being returned to Ontario on August 22, 2021. She did not provide her email address in the documents or her address.
[25] On August 25, 2021, the wife arrived in Toronto with the children. She was arrested, and the children were placed in the husband’s care.
Motion to Set Aside
[26] As noted, the wife’s motion is dated August 5, 2021, and seeks to set aside the two default judgments made in March 2021. It does not seek to set aside the order of January 11, 2021 that struck her pleadings.
Law
[27] Although they came at it somewhat differently, both parties agree that the court has the authority under Rule 25(19)(e) to set aside a default order (Gray v. Gray, 2017 ONCA 100) and that the test is as set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 19. It was nicely summarized recently by Justice Bale in Berta v. Berta, 2021 ONSC 2823 at paragraphs 19 to 22 as follows:
[19] Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, sets out the following factors for the Court to consider when determining whether to set aside an order obtained in circumstance of default:
Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;
Whether the moving party has established that there exists a plausible excuse or explanation for the default;
Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;
The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;
The effect of any order the motion judge may make on the overall integrity of the administration of justice.
[20] 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”.
[21] 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.
[22] 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.
[28] As indicated, but worth emphasizing, the onus is on the party moving to set aside the order (see also Irons v. Irons, 2020 ONSC 1471 at para. 112), and, ultimately, the decision as to whether to set aside is a matter of judicial discretion (see also Irons at para. 113 and Mountain View at para 55).
Analysis and Additional Facts
Plausible Excuse or Explanation for the Default
[29] In her own words, the wife explains her default in her supporting affidavit as a series of unfortunate incidents as follows:
I have an explanation for my failure to attend court or provide timely instructions to my former lawyer when the matter proceeded before the court because I was hospitalized upon my arrival in Kenya.
I was also never notified of the court dates as my email was not working, and I only noticed in March 2021. Therefore, I was unaware of the court dates that eventually led to me being noted in default.
Furthermore, I did not receive a notice that there would be a court on March 16, 2021, and March 24, 2021, and I had no idea that there was a final court order until I received a copy of the order from hoop Connect.
[30] She added some context to that summary in the same and a subsequent affidavit saying she “travelled” to Kenya with the children not intending it to be for an extended period, purportedly planning to return in time for the father’s next scheduled parenting time which she said she understood to be on November 28, 2020. She said in her first affidavit that it should be obvious that she was coming back as she had a full-time job as a nurse in a Kingston hospital to return to. She indicated that she was admitted to a hospital in Kenya on November 20, 2020 and discharged about three months later on February 18, 2021. She indicated that being in the hospital she did not have access to her telephone or the internet. She indicated that after being discharged she had password issues and lost access to her email. She said that after leaving the hospital she planned to return with the children to Canada, but was unable to until the children’s passport issue was resolved because they had expired, and because Kenya was “put on complete lock down due following (sic) a COVID19 infection surge”. She was in contact with the Canadian Consulate to get the children’s passports renewed in early April and was aware then of a court order to return the children, but said that she only became aware of the default judgments themselves on April 22, 2021 when she tried to access her HOOP pension account and learned of the order related to property. She said she then tried to contact her previous lawyer, but he did not return her calls. She then retained a new lawyer on June 9, 2021.
[31] This account by the wife is difficult to believe, and I note only some of the most obvious problems:
(a) She simply fails to address her decision to leave Canada with the children in clear breach of the April 11, 2019 court order. There is no way she could have been confused about that prohibition. Not only is the order clear, it arose out of a motion that was in response to her previously taking the children to Kenya. She had abided the said order twice by obtaining subsequent court orders allowing travel.
(b) As noted, the wife said in her first affidavit that it was obvious that she was planning on returning because she had a full-time job to return to as a nurse in a Kingston hospital. However, the husband had already determined that she had resigned from her full-time job before she left. She has since admitted this fact in her subsequent affidavit, as well as the fact that she did not have any income while in Kenya. Not only did she quit her full-time job before leaving, but the children were enrolled in school in Kenya.
(c) The wife says that “[u]nfortunately, within a couple of days of my arrival” she was “taken” to the hospital in Kenya on November 18, 2020 “upon diagnosing chronic anemia, chronic stress and anxiety” and was admitted on November 20, 2020, and then discharged on February 18, 2021. Per her factum she said she “fell seriously ill shortly after arriving in Kenya”. However, this picture of her going on a (prohibited) trip and suddenly falling ill is contradicted by the evidence of even her own witnesses. Her cousin, a Mr. Gachoki, swore an affidavit saying that on November 14, 2020 (which is the day that she left) the wife called him saying that she was coming to Kenya to receive medical treatment. He says she stayed with him for two days and then he took her to the hospital on November 20, 2018 to be admitted. Indeed, it appears that the treatment had already been pre-arranged. The wife’s mother Ms. Z. Mugo swore an affidavit explaining that the reason the wife came to Kenya was that she “fell sick in November 2020 and she was not able to go to the hospitals in Canada due to covid-19 restrictions” so the wife’s mother “took a loan so as to facilitate [the wife’s] treatment” in Kenya.
(d) In her second affidavit the wife described her going to Kenya a “two-week trip” that she did not believe would interfere with the husband’s next parenting time, which she said she thought was next to occur on November 28, 2021. She says she planned to return on November 26, 2020 and attached “return flight information” which appears to be an airline ticket for her and the children to arrive in Toronto on November 26, 2021. It is noteworthy that she failed to mention those return plans in her initial affidavit. Further, there is no indication that they are consistent with the plan indicated by her mother and cousin to admit her to the hospital, and they seem inconsistent with the decision to quit her full-time job and enroll the children in school in Kenya.
(e) Following from the above, the wife’s assertion that she was confused about the husband’s next parenting time when she went to Kenya is simply unbelievable given the wording of the October 14, 2020 order. It was clearly to be on the day she left, November 14, 2020, and not two weeks later. The wife therefore breached that court order as well. Even her own account of being inexplicably confused about the husband’s next parenting time makes no sense. As it was every other weekend, it would have had to have been on the weekend before she allegedly planned to come back even if her account were believed, not the weekend after as she asserted. Again, she left without notice to the husband or her counsel, and there was no discussion regarding permission or how to deal with the husband’s missed parenting time. I also note that there is no evidence of when that return ticket was purchased, or for that matter when it was cancelled.
(f) The tickets indicate that the flight to Kenya left Toronto at 10 am on November 14, 2021. As it takes time to travel from Kingston to Toronto and airlines generally ask travellers to check-in three hours before international flights, and as there would have been some packing and planning involved, it again begs the question when these tickets were purchased. There is no evidence, but if the wife did not have the ticket in hand when she was in court on November 10, 2021, she would have had to have purchased them almost immediately after learning that her cross-motion that day was unsuccessful.
(g) I find incredulous the wife’s suggestion that she only found out by happenstance upon accessing her pension information on April 22, 2021, or 6 months after she left for Kenya, that the litigation had moved on without her by way of default judgments. It makes no sense that she would wait that long to ask herself “I wonder what’s happening with my hotly contested litigation?” Further, she admitted in an email to the Consulate that she already knew in early April that there was a court order for her to return the children, and the December 9, 2020 order also indicated that if she didn’t do it forthwith her pleadings would be struck.
(h) The wife’s account of the alleged communication blackout is very hard to follow, and not believable. She says on entering the hospital her mother took her telephone. It begs the question why. The wife was not in a coma. While she emphasizes not having access to her “own” phone, it is likely that the hospital had a telephone, and in any event her cousin came to visit her every day in the hospital and she says that she used his phone to communicate with the children. But there was no call to her lawyer, the husband, or to the court.
(i) The wife states she “had no access to my email or phone until February 26, 2021” which was when she says she visited her mother’s home and picked up her telephone after leaving the hospital. She also indicated that it was sometime later that her email allegedly stopped working saying, “I have not accessed it since March 2021”. It therefore appears that her email was functional for a period after February 26, 2021, and it follows that she would have received the emails and notices prior to that date. She therefore knew or should have known that her pleadings had been struck and orders had been and were about to be made in her absence. There is no evidence of any efforts by her to recover her allegedly lost password.
(j) The wife indicates that when she left the hospital on February 18, 2021, she was unaware until after March 2021 of any court dates that led to her being noted in default. Yet she knew upon arriving in Kenya that she was in breach of two clear court orders, and indeed she was present when the Settlement Conference scheduled for January 15, 2021 was set. Even by her own suspect account, she obtained a new email address on April 1, 2021, but there was no email to the father or to the court to update her contact information. She knew or ought to have known that email was the manner of communication for the court process.
(k) The wife says when she got access to her telephone on February 26, 2021 she called her previous lawyer’s office and the Canadian Consulate, and no one would answer or return her calls. While that itself is suspect, from her own account she had a functioning phone. There were inexplicably no calls to the father, his lawyer, or to the court. There is no evidence of any attempt by her to update the court or the father about her contact information or alleged plans to return.
(l) It is notable that, if the wife truly thought that this was all innocent and a series of unfortunate incidents as claimed, there were no calls arranged between the children and the husband at any time even when she acknowledged having access to a telephone. He did not speak to them again for 9 months, namely until they were placed in his care in August 2021.
(m) The wife says that “upon checking [the children’s passports] I realized that they had expired.” Her first verified contact with the Consulate regarding the passport issue (she says she called before but could not get an answer) was by email on April 7, 2021. She told the consulate that she needed valid passports so that she could fly back to Canada with the children, although the husband is not convinced that was the purpose. This was roughly five months after she left. Regardless, her last communication with the Consulate in evidence was on April 28, 2021. After that the evidence of email exchanges inexplicably stop. There is therefore no evidence as to when emergency travel was actually authorized. If it was soon after that last April date, then there was a long unexplained delay until the children were returned in late August.
(n) The wife does try to explain that delay in some measure by referring to COVID-19 pandemic. She indicates that there were COVID related restrictions in Kenya and that travelling to other countries “was halted entirely”. But all she has attempted to put in evidence is a Reuter newspaper article from March 26, 2021 indicating an announcement by the Kenyan President to “halt all movement in the capital Nairobi and four other counties”. There is no clear evidence that this included the airport and urgent international travel out of Kenya. Most importantly, and this needs to be stressed, there is no evidence when that lockdown was lifted. There is no suggestion and it seems unlikely that it continued through to August. This reference to COVID-19 seems to be a rationalization by the wife after the fact, and there is no evidence of her trying to obtain flights for the children prior to their being returning home.
[32] It is confounding that the mother takes the position in her Factum that “she has always obeyed and respected court orders and had she been aware of the Court Orders that were made in her absence, she would have acted quicker to bring herself into full compliance as soon as she reasonably could have”. It has to be stated, quite simply, that everything leading up to the default orders in this case flows from the wife’s decision to deliberately disobey two very clear court orders. The series of allegedly unfortunate although improbable incidents that the wife pieces together since then to explain the ongoing default, including her alleged inability to communicate with people in Canada or to return the children, are unconvincing and, in addition, ignore the initial default. In my view there is no plausible excuse or explanation for the default, and, to the contrary, all the evidence points to it having been intentional and deliberate.
Whether the Motion was Brought Promptly
[33] The wife swears in her affidavit that she only learned of the March default judgments on April 22, 2021 when she logged onto to her pension account online. While it is not clear this is accurate (as noted she told the Consulate in an email dated April 12, 2021 that “I have a court order to return the children” so she appears to have known prior to that), she says she then took steps to bring this motion. She says her previous lawyer would not return her calls and that she finally retained alternate counsel on June 9, 2021, over six months after she left with the children. She then brought a motion for substituted service on the husband that was dismissed. She then served this motion on the husband on August 10, 2021.
[34] While it appears that she did move promptly related to the defaults (as distinct from returning the children), it was only once she decided to re-engage in this case, and in my view it is tempered by the intentional initial breach of two court orders and the subsequent wilful blindness as to the consequences.
[35] As noted, on her own evidence, the wife had access to her email from February 26, 2021 until sometime in March 2021 and knew or ought to have known that her pleadings had been struck. Regardless, she should have suspected that some court action would have been taken after she absconded with the children. It is somewhat disingenuous for her to base her argument on the discovery of the default judgements themselves. When you intentionally look away from your “heavily contested” (as she called it) litigation, then the timing of when you eventually decide to look back is entirely within your own control.
Arguable Case on the Merits
[36] It requires little analysis to find that prior to absconding with the children, the wife had an arguable case on the merits on all heads of relief, and particularly on the decision making and parenting time, as the children had primarily resided with her.
[37] However, as noted in Irons at para. 117, the questions specifically under this head of the test are whether the outcome of the uncontested trial could well have been materially different, whether a different order would have otherwise been made, or whether the order made at the hearing was appropriate or inappropriate.
[38] At the time when the orders were made, it is hard to envision any other result. The wife had quit her full-time job as a nurse in Kingston, she had intentionally uprooted the children without notice and absconded with them to Kenya where they were enrolled in school, she had severed their relationship with their father, she had defied two previous clear court orders, she had ignored the ongoing court process, and she had not kept the home payments in Kingston up to date. What she is asking for in this motion is for the court to reassess the case as if none of that had ever happened.
[39] As noted in Hilton v. Hilton, 2021 ONCA 29 at paragraph 10, when a party does not participate in the process, things tend not to go well, but nonetheless any allegations of misrepresentations and material omissions must still be determined on the merits. Here the mother has not pointed to any credible misrepresentation or material error. Instead, now that she has decided to return to Canada, she seeks to turn back time. However, the court made decisions on the uncontested trials based on the circumstances that existed then. The court valued property, imputed income, and made factual findings on the evidence available, which included evidence that the wife had absconded with the children giving no indication if or when she was ever coming back. That fact was not wrong. Her return is at best a material change in circumstances since those Final Orders.
[40] The wife says that “all the reliefs granted wouldn’t have been granted had I been allowed to participate in the court proceedings”. Again, she was more than just “allowed” to participate in the court proceedings. She was an active participant right up until the time that she wilfully and deliberately chose to leave.
Potential Prejudice to Either Party
[41] The prejudiced to the wife if the motion is dismissed is substantial, but she is the author of her own misfortune. The husband would also suffer substantial prejudice if the motion is granted. He has had to go through an extremely emotional and stressful situation following her withdrawal from the litigation and the surreptitious removal of the children from his life, along with the cost, stress, and uncertainty of the urgent motion and two final hearings.
[42] The wife with her motion is essentially seeking to press the reset button on this case and undo any prejudice she caused herself. If allowed, all the work that the husband had to do, under extreme conditions, would be lost. As noted in Lucreziano v. Lucreziano 2021 ONSC 4106 at paragraph 62, “[f]amily law cases area stressful, emotional and costly for all parties … [n]o one benefits from protracted or repeated litigation.” As in that case, I find the prejudice here leans in favour of the non-defaulting party. As an aside, the wife tried to distinguish Lucreziano on the basis that the defaulting party there filed no pleadings at all. I cannot see how that helps her. Her being more involved (she made claims and participated with counsel up until the middle of November 2020) makes her decision to allow the matter to be concluded without her participation all the more marked.
[43] Although it is not explicitly part of the test, I have weighed heavily the best interests of the children and the prejudice to them. They were removed from their father for eight months, and most recently have been removed from their mother upon her return to Canada for the last four months. It must have been extremely difficult for them, and I am very troubled by these events and concerned about their emotional impact (the husband indicates that he has the children in counselling). However, that cannot be undone. The wife’s rash and contemptuous actions and their consequences for the children are now facts in this case. As was noted at the hearing, had the wife brought a Motion to Change relating to the first default judgment and within it a motion for temporary relief, it is very likely that some formal parenting time for her would have been in place months ago.
Overall Integrity of the Administration of Justice
[44] This is a difficult factor for the wife to argue. Black’s Law Dictionary defines “administration of justice” as follows:
The maintenance of a right within a political community by means of the physical force of the state; the state’s application of the sanction of force to the rule of right.
[45] In this case it is the process by which the legal system of Ontario is executed. Its overall integrity occurs when laws and court processes are respected and followed; arbitrary action and ignoring the rule of law erode that integrity. The wife’s conduct, in intentionally ignoring the court process and breaching two court orders in the most egregious of ways, is an affront to the administration of justice, and it cannot be ignored simply because she has changed her mind and decided to return to Canada seeking a do-over. The husband, on the other hand, has utilized the court processes available for situations like this as set out in the Family Court Rules, and has followed the path they laid out to conclude the litigation in a way that, while unfortunate, was necessary in view of the wife’s conduct.
Decision
[46] I am not convinced that the wife has met the bulk of the tests set out in Mountain View Farms Ltd., and looking at all the particular circumstances of this case I do not find that it would be just for me to exercise my discretion to set aside the Final Orders. The mother’s motion is dismissed.
[47] As the parties have indicated that they wished to address me on costs, I will accept written submissions as follows:
a. From the husband served and filed within ten days from the release date of this decision of no more than three pages, double spaced, in addition to any relevant offers and draft bills of costs.
b. From the wife served and filed within fifteen days after she is served with the husband’s submissions of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.
c. If required, a reply from the husband of no more than one page double spaced served and filed within five days after he is served with the wife’s submissions.
d. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves, and I encourage them to do so.
Minnema J.
Date: January 12, 2022