COURT FILE NO.: FS-22-28064-000
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.B.
Applicant
– and –
C.D.
Respondent
Aaron Franks & Alyssa Weinerman, for the Applicant
Barry Nussbaum, as Agent for the Respondent
HEARD: In writing
M.D. Faieta j.
reasons for decision
[1] The Applicant brings this Form 14B motion for an order that the Respondent is not entitled to notice of any step in these proceedings or to participate in these proceedings pursuant to Rule 10(5) given that he has failed to file an Answer and for an uncontested trial. The Applicant also seeks an order that permits her to sell the matrimonial home as she cannot afford to maintain without the Respondent’s financial support. The Respondent asks that the Applicant’s motion be dismissed and, although he did not file a cross-motion, he asks that he be permitted additional time to deliver an Answer. Neither party objects to these motions be dealt with by way of Form 14B motion.
[2] This motion proceeded on the basis of the Applicant’s affidavit sworn August 3, 2022 and the Respondent’s affidavit sworn August 12, 2022.
BACKGROUND
[3] The parties are the parents of three children, ages 10, 9 and 7. The Respondent left the matrimonial home on August 17, 2021, after someone came to the matrimonial home with a baseball bat and demanded money from him. The Respondent left the matrimonial home in late August 2021 and has not returned. The same person who came to the Applicant’s home in August 2021 returned on several occasions in the Fall of 2021. The Applicant has also received several messages and telephone calls that threaten the lives of the Applicant, her children and others. These threats have caused psychological harm to the children and the Applicant. The Applicant subsequently learned that the Respondent had been allegedly involved in a multimillion-dollar fraud and that he has been charged with criminal offences related to fraud: See A.B. v. C.D., 2022 ONSC 2134, paras. 25-31
[4] This Application was issued on February 9, 2022.
[5] On February 23, 2022, counsel for the Applicant sent a copy of the Application to the Respondent as she does not know his whereabouts.
[6] On April 5, 2022, Davies J. granted an Order for substituted service that authorizes the service of all documents, including the Application, on the Respondent by email: See A.B. v. C.D., 2022 ONSC 2134, paras. 48-50.
[7] On April 11, 2022, the Respondent was served with the Application, Form 35. 1 Affidavit, Financial Statement and other documents by email in accordance with the Order of Davies J.
[8] On April 18, 2022, a lawyer named Avy Ben-zvi contacted the Applicant’s counsel to advise that he was in the process of being retained by the Respondent and that he would need additional time beyond the May 11, 2022 deadline (as provided by Rule 10(1) of the Family Law Rules) to file an Answer. Mr. Ben-zvi agreed to provide an Answer by May 25, 2022.
[9] On May 24, 2022, Mr. Ben-zvi advised the Applicant’s counsel that he was no longer retained.
[10] On May 31, 2021, counsel for the Applicant wrote to the Respondent advising him that his Answer and Financial Statement were due on May 11, 2022 and asked whether he intended to serve and file responding materials.
[11] The Respondent did not respond to this letter.
[12] On June 8, 2022, counsel for the Applicant wrote once again to the Respondent asking whether he intended to deliver responding materials. The letter further states:
If we do not hear from you by the end of next week (June 17, 2022), either with your responding materials or with a firm proposal regarding when we can expect to receive your materials (which we remind you were due on May 11, 2022 – four weeks ago), we will seek to move this matter forward in your absence, in accordance with Rule 10(5) (and Rule 1(8.4)) of the Family Law Rules.
[13] On June 17, 2022, the Respondent advised counsel for the Applicant “still seeking counsel, will need some more time here”.
[14] On June 20, 2022, counsel for the Applicant advised the Respondent that he required a definitive date for when he would deliver his responding materials.
[15] The Respondent did not respond to this email.
[16] On July 5, 2022, counsel for the Applicant sent a further email to the Respondent stating that “if we do not hear from you within a definitive date by the close of business this Friday, July 8, 2022, we will proceed to deal with this matter on an uncontested basis”. On that day, the Respondent replied that he would “need another 2 weeks to get organized on my end”. Counsel for the Applicant replied that she would proceed to seek to deal with this matter on an uncontested basis if his responding materials were not delivered by July 19, 2022.
[17] On July 18, 2022, the Respondent sent a further email:
I have yet to fully retain counsel at this point and I do not feel comfortable to submit paperwork before a lawyer reviews it. I am asking for an additional 2 weeks for me to retain counsel and go over all paperwork that is needed. I do appreciate the time given but rest assured it will be submitted on or prior to Aug 2nd.
[18] The Respondent did not deliver his Answer by August 2, 2022.
[19] On August 5, 2022, Nan Zheng of Nussbaum Law advised counsel for the Applicant that their office had been recently retained by the Respondent and that Jessica Cohen would be the primary lawyer on the file however she would be away until August 9, 2022.
[20] A copy of his draft Answer and Financial Statement was not appended to the Respondent’s affidavit.
[21] The Respondent asks that the deadline for the filing of his Answer be extended for 30 days. He states that it is in the best interests of his children that he be allowed to participate in this proceeding. He further states without explanation that the events related to their separation and afterwards have been mischaracterized. Further, he states that the disposition of the matrimonial home should be addressed at a Case Conference scheduled for September 28, 2022.
[22] The Applicant states that she needs to move forward with selling the matrimonial home as she cannot afford to maintain it without any support from the Respondent. The Applicant owns the matrimonial home and has been paying all of the expenses associated with the matrimonial home. She has also paid all of the living expenses for the three children. The Respondent has not paid support. The Applicant relies on her mother to make ends meet. The Applicant states that she also needs to move forward with issues related to decision-making responsibility of the children.
ISSUE #1: SHOULD AN EXTENSION OF THE TIME TO DELIVER AN ANSWER BE GRANTED?
[23] The consequences for failing to deliver an Answer within the 30-day period provided for by Rule 10(1) of the FLR are clear under Rule 10(5) of the FLR, which states:
The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer.
[24] Rule 1(8.4) states:
If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case
[25] In asking for an extension of time to file his responding materials the Respondent has failed to deliver a notice of motion as required by the FLR.
[26] Rule 3(5) of the FLR provides that the Court may make an order to lengthen or shorten any time set out in the FLR. No considerations are specified.
[27] A motion to extend the time for filing an Answer is similar to a request for additional time to file a Statement of Defence on a motion to set aside a noting in default under the Rules of Civil Procedure. In such cases, it is well established that there are several relevant considerations including the length of the delay, the reasons for the delay and the balance of prejudice: See Franchetti v. Huggins, 2022 ONCA 111, para. 9; Wilkinson v. Wilkinson, 2018 ONSC 1864, para. 18, Homanchuk v. Filipowicz, 2010 ONSC 1372, paras. 10-11.
[28] In a family law proceeding, the discretion under the FLR, including under Rule 3(5), is also informed by Rules 2(2)-2(5) of the FLOR:
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
Duty to manage cases
(5) The court shall promote the primary objective by active management of cases … .
[29] A delay of more than three months in filing an Answer represents an inordinate delay. The Respondent promised to deliver an Answer by numerous deadlines (May 25, July 19 and August 2) and failed to do so. The failure of the Respondent to offer any explanation for his failure to file an Answer, particularly when he had retained a lawyer in May 2022, is troubling.
[30] While there is a public interest in maintaining the adversarial structure of a proceeding, it must be balanced against the public interest in the timely adjudication of family law disputes and the expectation that parties shall comply with the law. The deadline provided in the FLR for the filing of an Answer is not a guideline. Nor will the breach of the deadline to file an Answer always be cured. If family law proceedings are to be made timelier and more efficient, then the breach of mandatory requirements under the FLR, whether filing deadlines or disclosure obligations, must be afforded greater respect.
[31] Having regard to all the circumstances, I find that it is just to dismiss the Respondent’s cross-motion to extend the time for serving an Answer.
ISSUE #2: SALE OF THE MATRIMONIAL HOME
[32] The Applicant requests an order for the sale of the matrimonial home pursuant to s. 21(1)(c) of the Family Law Act, R.S.O., 1990, chap. F.3, as amended. This provision states:
No spouse shall dispose of or encumber an interest in a matrimonial home unless,
… a court order has authorized the transaction or has released the property from the application of this Part.
[33] The Respondent expressed no views and made no submissions on this aspect of the Applicant’s motion.
[34] A matrimonial home may, prior to trial, be ordered to be listed for sale without the consent of the spouse where the evidence does not support a realistic need to maintain the house as a home for the benefit or stability of the children: Goodman v. Goodman, 2014 ONSC 3466
[35] The Applicant is the sole caregiver and provider for the children. I accept her judgment in respect of the need for the sale of the matrimonial home notwithstanding that it will result in the children moving out of their home. However, rather than having the net proceeds of sale paid to the Applicant on closing, it is my view that the net proceeds of sale of the matrimonial home shall be maintained in her real estate solicitor’s trust account pending further order of the Court.
ISSUE #3: COSTS
[36] The Applicant was successful on this motion and is entitled to her costs under Rule 24 of the FLR. I find that it is fair and reasonable to order that the Respondent pay costs of $2,000.00.
ORDER
[37] Order to go as follows:
Pursuant to the Family Law Act:
The consent and signature of the Respondent, C.D. (the "Respondent"), is hereby dispensed with regarding the listing and sale of the matrimonial home (that is in the sole name of the Applicant, A.B. (the "Applicant")), including any signatures required on the Agreement of Purchase and Sale, deed/transfer and closing documents as required by the Agreement of Purchase of Sale.
Following the closing of the sale of the matrimonial home, the net proceeds of sale shall be retained in trust by the Applicant’s real estate solicitor and released in accordance with the directions of this Court.
Pursuant to the Family Law Rules:
The Respondent is not entitled to any further notice of steps in this case, except as provided by subrule 25(13) (service of an Order), unless this Court otherwise orders.
The Respondent is not entitled to participate in this case in any way unless this Court otherwise orders.
The Court may deal with this case in the absence of the Respondent.
The Applicant may proceed to an uncontested trial in writing based on a Form 23C Affidavit and Factum.
The Respondent shall pay costs of $2,000 to the Applicant within 30 days.
Mr. Justice M.D. Faieta
Released: August 29, 2022
COURT FILE NO.: FS-22-28064-000
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.B.
Applicant
– and –
C.D.
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: August 29, 2022