Superior Court of Justice - Ontario
RE: MARK STEVEN JOHN OSTAPYK, Applicant
-and-
SALOMEH OSTAPYK, Respondent
BEFORE: Justice D. Summers
COUNSEL: Christopher A. Mamo, for the Applicant Gonen Snir, for the Respondent
HEARD: July 13, 2021
ENDORSEMENT
1The respondent’s motion to set aside the order made by Justice Shelston dated February 17, 2021 is granted on terms set out below. Those terms also determine the cross-motion brought by the applicant, which is allowed in part.
2These are my reasons.
3The parties separated in December 2019 after more than 11 years of marriage. They have three children together who are now 10, 8 and 7 years of age.
4The separation occurred immediately after the respondent experienced a serious mental health crisis after which she left Ottawa and moved to British Columbia to stay with her parents.
5The respondent has not had in-person contact with her children since June 2020.
6In the fall of 2020, the respondent retained counsel to try to reach a settlement with the applicant. She was not successful, and the solicitor-client relationship broke down.
7In December 2020, the applicant commenced this proceeding. On December 22, valid service was carried out upon an adult residing at the same address as the respondent.
8The applicant sought all aspects of parenting relief, child support including section 7 expenses, exclusive possession of the matrimonial home, and an unequal division of net family property. This is a standard track case hence the process does not start with a first appearance date. Nonetheless, it appears the respondent was confused by the reference to a first appearance date on the face of the Application although it was correctly left blank.
9The respondent did not deliver an Answer within the permitted time. On February 4, 2021, the applicant served a Form 14B motion in writing and supporting materials seeking orders noting the respondent in default and permitting an uncontested trial. The respondent replied by email inquiring how to contact the court, to say she was looking for a lawyer, and waiting to hear from Legal Aid. The applicant’s counsel responded that they would withdraw the motion if she consented to an order requiring delivery of her Answer by February 26, 2021. The respondent did not reply and on February 17, Justice Shelston made the order finding her in default of the Answer period and allowing the applicant to proceed to an uncontested trial. This endorsement was delivered to the respondent by February 19, 2021, at the latest.
10According to the respondent, she emailed the court on February 19 asking for advice but did not receive an answer. She did, however, learn that the uncontested trial had been scheduled for June 17, 2021 and she appeared that day telling the court that she wanted to bring a motion to set aside Shelston J.’s order. It was clear that day that the court intended to adjourn the uncontested trial, in any event, as a result of the extensive materials filed, and lack of preparation time provided. The respondent’s proposed motion was scheduled for July 13, 2021. The applicant was also given permission to bring a motion on that date for disclosure of police records.
11Not long thereafter, the respondent received a Legal Aid Certificate, retained her lawyer, and brought the motion that is now before the court.
12It is settled law that rule 25(19) of the Family Law Rules, O. Reg 114/99 includes the authority for the court to set aside an order: See Gray v. Gray, 2017 ONCA 100. The rule provides as follows:
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.
13Subsection (e) applies here. Was the respondent unable to be present on February 17, 2021 for a reason satisfactory to the court? The inquiry, however, does not end with the rule. As stated by the court in Bompas v. Henry, 2018 ONSC 7718, at para. 15,
It is my view that the inquiry should not end with r. 25(19)(e). Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly. In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure. That provides the court with the authority to set aside a default judgment on such terms as are “just”. The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration. The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief. The factors are:
a) Whether the motion was brought promptly after the respondent learned of the default judgment;
b) Whether there is a plausible excuse or explanation for the defendant's default in complying with the rules;
c) Whether the facts establish that the respondent has an arguable defence on the merits;
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 court might make on the overall integrity of the administration of justice. [Footnotes omitted.]
I will address these factors and then return to the question posed by r. 25(19)(e) of the FLRs.
Did the respondent bring her motion promptly after learning about the default judgment?
14The answer here is no, she did not bring her motion to set aside the February 17 order promptly. Four months elapsed before she asked the court to provide her with a date on which to seek that relief.
Is there a plausible excuse or explanation for the respondent’s default in complying with the rules?
15There is, however, a plausible excuse or explanation for the respondent’s default in complying with the rule requiring delivery of her Answer within the set period. She lived in another province, did not have a lawyer at the time, and was trying to get assistance from Legal Aid Ontario. She was a person who, on the totality of the materials before the court, had significant mental health issues. The applicant correctly points out that the respondent herself did not offer these issues as an excuse for her lateness, but the court cannot escape the fact that they are described in the applicant’s materials and are of some considerable duration.
Do the facts establish that the respondent has an arguable defence on the merits?
16The respondent offers little about the merits of her defence other than saying that the children’s best interests would be served by the court hearing from both parties before deciding the parenting issues. The applicant vigorously contests this submission. He asserts that the children are better off if their mother is not allowed to participate in the case as she has had very little contact with them since moving to British Columbia, has exposed them to several harrowing incidents, has subjected him to harassing communications, and has made egregious threats, that if acted on, would prove extremely disruptive to the children and himself.
17The Ontario Court of Appeal has ruled that the utmost caution must be used before striking a party’s pleading as it relates to parenting issues because a full evidentiary record that includes the participation of both parents is generally required for the court to make a custody decision in the best interests of the children. The decision in Burke v. Poitras, 2018 ONCA 1025, is one example. My view is that this principle should also be considered here. It supports the general policy of the court giving preference to deciding cases on their merits rather than by default. Ultimately, it is in the best interests of the children for the court to hear from both parents and determine the impact of the respondent’s actions on the parenting issues on a full evidentiary record, including her concerning and highly offensive emails to the applicant.
What is the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the responding party should the motion be allowed?
18The potential prejudice to the respondent should the motion be dismissed is clear. As succinctly stated by the court in Hilton v Hilton, 2021 ONCA 29, at para. 10, “When a party does not participate in the process, things tend to not go well.” This is especially so in situations such as the one here, where the respondent’s future relationship with her children is at stake. Perhaps of less significance, but nonetheless important, is the applicant’s claim for an unequal division of net family property. Without making any determination of, or even comment on, the accuracy of the applicant’s financial statement, it at least reveals a number of areas that the respondent may legitimately wish to explore including the nil value given to his business, and some financial transactions with his mother.
19I have no doubt that there is compensable prejudice to the applicant. He deposes, and I accept, that he incurred significant legal fees preparing for the uncontested trial, and that he is entitled to costs thrown away in that regard. The applicant further submits that he has been prejudiced by the delay in the proceedings and should not face additional delay in moving forward to finalize his claims. These concerns are appropriately addressed in the terms below on which the default order is set aside and by the assignment of a case management judge to oversee the timely progress of the file to its conclusion.
What is the effect of any order the court might make on the overall integrity of the administration of justice?
20I find that the effect of the order to be made on the integrity of the administration of justice favours setting aside the default order and permitting the respondent to deliver an Answer. She obtained a Legal Aid Certificate, hired counsel, appeared before the court on June 17 seeking assistance, and has pursued the opportunity afforded her to bring this motion. I also accept her assertion that it was not an easy task to find a lawyer considering the conditions created by the pandemic. Moreover, and although there is no medical or diagnostic evidence before the court, the observations of the applicant and the neighbour regarding the respondent’s behaviour and appearance are strong support that she struggles with significant mental health issues whether she proffers that as an explanation or not.
Rule 25(19)(e)
21Turning to FLRs r. 25(19)(e), the respondent deposes in her affidavit that she was unaware a court date had been scheduled and that is why she did not attend or file materials for the February 17, 2021 motion. Despite the information contained in Form 14B itself that an opposing affidavit must be delivered within seven days or the motion may be dealt with as unopposed, I accept her explanation as satisfactory in the circumstances discussed above.
22For these reasons, I make the following order:
The order dated February 17, 2021 is set aside. The respondent may deliver an Answer, financial statement, and affidavit in Form 35.1 on or before February 11, 2022, but not thereafter. Failure to do so shall entitle the applicant to proceed with an uncontested trial without further notice to the respondent.
Until further order of this court made on notice to both parties, the children shall reside with the applicant, who shall have exclusive possession of the matrimonial home, and the applicant shall have sole decision-making responsibility for the children.
On a without prejudice basis, and until further order of this court made on notice to both parties, the respondent’s parenting time with the children shall be at the discretion of the applicant.
To produce police records as asked at paragraph 3 in the draft order submitted by the applicant, the full terms of which shall be included in the formal order to be signed and issued.
A judge shall be assigned to case manage this file.
If the parties are unable to resolve the issue of costs of the motion , they may make written submissions to me not to exceed three-pages in length plus any applicable offers to settle the motion, and Bills of Costs, to be exchanged and received by me not later than February 28, 2022.
In the event that the respondent delivers her Answer and related documents as required by paragraph 1 above, the applicant shall be entitled to his costs thrown away in preparation for the uncontested trial scheduled for June 17, 2021, to be fixed and payable after final determination of the issues in the case.
Justice D. Summers
Date: January 20, 2022
COURT FILE NO.: FC-20-2047
DATE: 2022/01/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARK STEVEN JOHN OSTAPYK, Applicant
-and-
SALOMEH OSTAPYK, Respondent
BEFORE: Justice D. Summers
COUNSEL: Christopher A. Mamo, for the Applicant Gonen Snir, for the Respondent
ENDORSEMENT
D. SUMMERS J.
Released: January 20, 2022