COURT FILE NO.: FC-19-FS44
DATE: 20221128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.S.L.
Applicant
– and –
M.A.B.
Respondent
Barry T. Paquette, for the Applicant
Respondent appearing in person
HEARD: September 14, 2022
The honourable mr. justice d.j. gordon
REASONS FOR DECISION
[1] In her motion, dated April 22, 2022, the respondent mother, M.A.B., requests an order setting aside the temporary order of Broad J., granted April 13, 2021, and other relief. The motion is opposed by the applicant father, S.S.L.
[2] On July 20, 2022, the motion was adjourned, on consent, by Piccoli J., to be heard by the trial judge.
[3] Evidence on the trial was presented from September 7 to 14, 2022. Submissions on the motion occurred on September 14, and for the trial on September 15, 2022. I reserved my decision on both matters.
[4] For this motion, I have considered the affidavits from both parties filed for the motion as well as the relevant evidence from the trial. There is an overlap between the motion and trial given the issues in dispute.
Background
[5] S.S.L. and M.A.B. were in a relationship from 2015 to 2018. A child, M.L., was born in 2016. The parties did not cohabit. Each party has older children. The primary focus in this case is the parenting of M.L.
[6] Following the end of the relationship, S.S.L. was unsuccessful in arranging parenting time with M.L. In result, his application was issued on January 22, 2019, seeking joint custody and other relief.
[7] M.A.B. retained a lawyer. Her answer is dated April 5, 2019, seeking sole custody of the child, limited and supervised access to S.S.L. and other relief.
[8] Communication between counsel did not resolve parenting time, or access as it was then known. An urgent motion was served on behalf of S.S.L.
[9] An order was granted by Madsen J. on May 15, 2019. S.S.L. was to have parenting time on Saturdays and Tuesdays, each for two hours, to occur at the municipal library.
[10] The case conference was scheduled for June 24, 2019. On this occasion, a further consent order was granted by Walters J., increasing the parenting time of S.S.L. by a modest amount and addressing other matters.
[11] A second case conference was held on September 18, 2019. Prior to this event, M.A.B. had retained a new lawyer. An order was granted by McLeod J., partially on consent, setting out a detailed parenting regime, including the following:
a) M.L. to reside in primary care of M.A.B.;
b) S.S.L. to have parenting time, increasing in stages, ultimately being every Tuesday from 4:45 p.m. to 7:45 p.m., and alternate Thursdays from 4:45 p.m. to 7:45 p.m., and alternate weekends from Friday at 4:45 p.m. to Sunday at 4:45 p.m., extended to Monday at 4:45 p.m. in the event of a long weekend;
c) A detailed schedule for holidays and special days and other matters.
[12] At some point in late 2020 or early 2021, M.A.B. terminated the retainer of her lawyer. She has been self-represented since.
[13] Difficulties arose regarding the parenting time of S.S.L. as provided in the order of September 18, 2019. He complained of late exchanges and visits being cancelled by M.A.B. In result, S.S.L. caused a contempt motion to be served on M.A.B. The motion sought other relief, including terms for the exchanges and the appointment of the Children’s Lawyer for the child.
[14] On the return date, the motion was adjourned to be heard as a long motion on the running list for the week of April 12, 2021. By email from the trial co-ordinator on April 12, 2021, at 4:11 p.m., notice was given to Mr. Paquette and M.A.B. that the motion would be heard on April 13, 2021, at 10:00 a.m. Zoom details were provided.
[15] Mr. Paquette and S.S.L. attended court virtually for this motion. M.A.B. did not. On this occasion, Broad J. granted an order on the following terms:
a) Requesting the Office of the Children’s Lawyer to conduct an investigation pursuant to section 112, Courts of Justice Act, and directing the parties to submit intake forms in the usual manner;
b) Police enforcement regarding parenting time as set out in the order of September 18, 2019;
c) S.M. (subsequently known to be the husband of M.A.B.) was not to attend on the exchange of the child with only M.A.B. or her father, M.B., being permitted;
d) S.S.L. was granted additional parenting time from April 14 to 18, and 23 to 25, 2021;
e) M.A.B. to pay S.S.L. full indemnity costs of $6,500.00; and,
f) The contempt motion was adjourned to be placed on a long motions list for a week to be set by the trial co-ordinator.
[16] The formal order was issued that day and a copy was delivered by email from Mr. Paquette’s office to M.A.B. at 1:07 p.m. An intake form was also provided with instructions to M.A.B. to complete same and return it to the Children’s Lawyer. At 6:11 p.m., M.A.B. delivered an email to the trial co-ordinator and to Mr. Paquette saying:
Please be advised that I was not aware of the hearing of the motion this morning.
[17] M.A.B. served a motion, dated April 15, 2021, with a placeholder date of April 28, 2021, seeking to set aside the order of April 13, 2021. Responding material was served by Mr. Paquette. He also served and filed a confirmation for the motion. M.A.B. did not. The trial co-ordinator communicated with Mr. Paquette and M.A.B. advising that she was unable to schedule motions until after June 1, 2021 (due to the backlog resulting from the pandemic). M.A.B. did not seek to reschedule that motion.
[18] S.S.L. delivered his intake form to the Children’s Lawyer. Despite obtaining information regarding the process, M.A.B. chose not to submit an intake form. Nevertheless, the Children’s Lawyer consented to providing the services requested on August 16, 2021, assigning Todd Perreault as the clinical investigator.
[19] Mr. Perreault interviewed S.S.L. on August 20, 2021. He spoke to M.A.B. on August 17 and 27, 2021.
[20] In his Collapsed Report of the Children’s Lawyer, Mr. Perreault wrote:
[M.A.B.] was very clear that she did not wish to participate in the section 112 investigation, nor did she wish to have [M.L.] to be part of this investigation.
[M.A.B.] stated that she would be informing the court, in September 2021, that she wanted to have the decision to involve the Office of the Children’s Lawyer overturned.
[21] In result, the investigation did not occur. S.S.L. did not pursue the contempt motion.
Family Law Rules
[22] Rule 25(19) provides as follows:
(19) Changing order — fraud, mistake, lack of notice - 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.
[23] Pursuant to Rule 25(19), a court has the authority to set aside a prior order. See: Gray v. Gray, 2017 ONCA 100.
Principles
[24] The starting point is to recognize that it has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. See: R v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594 (S.C.C.); Ontario (Attorney General) v. Paul Madger Furs Ltd., (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (Ont. C.A.); and Manis v. Manis (2001), 2001 CanLII 3851 (ON CA), 21 R.F.L. (5th) 355 (Ont. C.A.).
[25] The relevant factors to be considered on a motion to set aside a prior order obtained without notice are summarized by Madsen J. in Irons v Irons, 2020 ONSC 1471. In para. 110, with reference to Mountain View Farms Ltd. V. McQueen, 2014 ONCA 194, those factors are set out as follows:
a) Whether the motion was brought promptly after learning of the order granted;
b) Whether there is a plausible excuse or explanation for the respondent’s default in complying with the Rules (Primarily as to delay);
c) Whether the facts establish that the moving party has an arguable defence on the merits to the original motion;
d) 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; and,
e) The effect of any order the court might make on the overall integrity of the administration of justice.
[26] As Madsen J. also noted, the relief sought is discretionary and the onus is on the party moving to set aside the order.
Positions of the Parties
[27] The positions of the parties as presented in evidence and submissions may be summarized in the following manner.
(a) Moving Party – M.A.B.
i) Inadequate Notice – M.A.B. reported a regular check of her emails, as she was expecting to receive notice of the hearing date, including earlier on April 12, 2021. Notice at 4:11 p.m., she says, “can be regarded as after business hours”. M.A.B. was of the understanding that notice was to be provided “prior to 4:00 p.m.”. Accordingly, she was unaware of the hearing date.
ii) Hearing – M.A.B. says she is unaware of what she said at the hearing in her absence.
iii) Parenting Time – M.A.B. reported concerns with the presence of boarders or tenants in the residence of S.S.L. and with the lack of a separate entrance for them. Acting on the advice received from the Family Law Information Centre, she sought to suspend overnight parenting time by S.S.L. M.A.B. said she was unaware at the time of the requirement for a motion to change the prior temporary order.
iv) Form 35.1 – M.A.B. claims that S.S.L. has not yet served an updated affidavit disclosing the names of his tenants and fiancé.
v) Exchanges – M.A.B. argues the court cannot rely on the evidence of S.S.L. as he has presented false allegations and has been the cause of the problems. S.W., she says, has not been threatening or harassing S.S.L. Further, M.A.B. reports the need for a third party attending on her behalf due to the trauma caused by S.S.L.
vi) Police Enforcement – M.A.B. understood the police enforcement clause expired after six months. Otherwise, she presented no complaint as to this term.
vii) Children’s Lawyer – M.A.B. did not address this term in her affidavit or in submissions. At trial, during cross-examination, she denied Mr. Perreault’s statement regarding non-participation in the investigation. M.A.B. also stated such had to be conducted virtually but Mr. Perreault insisted it be in person. In result, M.A.B. said the investigation would not be “healthy” for M.L.
(b) Responding Party – S.S.L.
i) Form 35.1 – The affidavit of S.S.L., sworn April 26, 2022, is in the Trial Record. Mr. Paquette pointed out that the affidavit discloses the name of his client’s fiancé, J.G., but that the tenant is not identified as she does not reside in the family residence.
ii) Tenant – Mr. Paquette referred to the evidence at trial. The tenant has a self-contained unit with a separate entrance.
iii) Parenting Time – Again, referring to the evidence at trial, Mr. Paquette submits M.A.B. has consistently interfered with the parenting time of S.S.L., contrary to the temporary order.
iv) Delay – M.A.B. failed to contact the trial co-ordinator in June 2021 to re-schedule her initial motion, re-serving it in April 2022. Mr. Paquette submits that M.A.B. has provided no explanation for her delay.
v) Exchanges – Mr. Paquette referred to the evidence at trial demonstrating the necessity for terms on exchanges. There is no need, he argues, for S.M. to be present given the conflict – rather, if M.A.B. does not want to attend, she can use her father or adult daughter for this purpose.
vi) Children’s Lawyer – Mr. Paquette submits that M.A.B. has not explained her opposition to an investigation. Further, he says there is now no Children’s Lawyer report to assist the court as M.A.B. sabotaged the process.
vii) Police Enforcement – M.A.B. cannot oppose such a term, according to Mr. Paquette, as she seeks the same relief in her answer. The evidence also revealed the involvement of police officers on many occasions. Mr. Paquette points out that there is no expiry date in the order for police enforcement.
viii) Prejudice – Mr. Paquette argues there can be no prejudice to M.A.B. if her motion is dismissed as to any of the terms previously granted. There is prejudice to S.S.L. if the motion is granted, he says, as demonstrated in the evidence at trial, particularly regarding the exchanges and need for police enforcement.
ix) Arguable Defence – M.A.B. has not presented an arguable defence to the original motion and relief as previously ordered.
x) Administration of Justice – Mr. Paquette referred to the repeated breaches of the prior orders regarding parenting time by M.A.B. and, in particular, as to the presence of S.M. at exchanges, contrary to the order of April 13, 2021. Mr. Paquette indicated M.A.B. and S.M. were well aware of the terms of that order as revealed in their cross-examination. He submits orders must be followed until set aside, and by ignoring the orders, M.A.B. and S.M. are attacking the integrity of the administration of justice.
Discussion and Analysis
[28] A motion to set aside a temporary order, in my view, ought to be heard long before the trial. Nevertheless, I now have the benefit of a more complete evidentiary record to address the issues raised.
[29] M.A.B. complains of inadequate notice for the hearing of the original motion, relying on Rule 25(19)(e). With respect, I disagree. When the motion was adjourned to be heard as a long motion on the running list for the week of April 12, 2021, M.A.B. must have been made aware the hearing date would be scheduled by the trial co-ordinator only if a judge became available and that she may be given short notice on the day prior to the event. Such occurred in this case. The trial coordinator delivered an email at 4:11 p.m. advising of the hearing the following day at 10:00 a.m.
[30] It is unclear as to why M.A.B. says such notice can be regarded as after business hours or why it must be provided prior to 4:00 p.m. The regular business hours, including that of the trial co-ordinator, conclude at 5:00 p.m. Lawyers and self-represented parties have an obligation to monitor their email account when they know a motion date is pending. M.A.B. says she checked for emails earlier in the afternoon on April 12, 2021, although she does not specify the time, yet it was not until 6:11 p.m. the following day that she reported being unaware of the hearing. Clearly, M.A.B. was not checking her emails regularly as required.
[31] M.A.B. also says she does not know what was said at the hearing in her absence. A transcript could have been requested or she could have arranged to listen to the audio recording.
[32] M.A.B. has raised concerns regarding the presence of tenants and other matters pertaining to the residence of S.S.L. throughout the litigation process. Such are not relevant to the issues on this motion. Any concern ought to have been addressed in a motion long before the trial. The form 35.1 affidavit of S.S.L. in the Trial Record discloses the name of his fiancé. She was present throughout the trial and could have been called as a witness by M.A.B. Further, the evidence at trial from S.S.L. is that the tenant occupies a self-contained unit in the basement with a separate entrance. There was no evidence to the contrary from M.A.B. Of some interest, the concerns of M.A.B. could have been addressed by Mr. Perreault had the Children’s Lawyer investigation be allowed to proceed.
[33] The order M.A.B. seeks to set aside was granted on April 13, 2021. She promptly served a motion two days later, with a placeholder date of April 28, 2021. The trial co-ordinator advised M.A.B. and Mr. Paquette that motion dates were being scheduled after June 1, 2021. Motions were then being heard virtually, with a backlog developing due to inherent delays in proceeding in that manner.
[34] M.A.B. failed to contact the trial co-ordinator to re-schedule her motion. In result, it is appropriate to conclude that motion was abandoned.
[35] The present motion seeking to set aside the order was not served until April 2022, essentially the same motion as presented a year prior. It is of some interest that there was a settlement conference on March 18, 2022. On that occasion, McLeod J. directed the case to be heard at the trial sittings in September 2022.
[36] M.A.B. offers no explanation for the one year delay, despite advising Mr. Perrault, the Children’s Lawyer investigator, that she would be informing the court in September 2021 she wanted the order overturned. In my view, there must be some evidence accounting for delay.
[37] In addition to that serious deficiency, M.A.B. does not provide an arguable defence on the merits, to the original motion. There are three terms of the order requiring consideration on this motion:
i) Children’s Lawyer appointment;
ii) Prohibition as to S.M. attending on exchanges; and
iii) Police enforcement.
[38] M.A.B. does not explain her opposition to the Children’s Lawyer investigation. Yet at trial she attempted to challenge the accuracy of the comments by Mr. Perreault in his Collapsed Report of the Children’s Lawyer. This, in my view, is improper. This document is still a report within the meaning of section 112(2), Courts of Justice Act. It is evidence at trial pursuant to section 112(6). M.A.B. did not serve a dispute to this report, as required by Rule 21(e), Family Law Rules. In result, Mr. Perreault was prevented from responding to her testimony and M.A.B. may not now dispute his findings or comments. See, for example: Mason v. Bell, 2010 ONSC 4325.
[39] Further, a Children’s Lawyer investigation was necessary in this case given the difference in the positions of the parties, their conflict, and the impact on the child. This importance was demonstrated by the consent from the Children’s Lawyer to conduct an investigation notwithstanding the absence of an intake form from M.A.B.
[40] The refusal of M.A.B. to participate in the investigation also results in the denial of the child’s right to be heard as provided in Article 12, United Nations Convention on the Rights of the Child, and section 64, Children’s Law Reform Act.
[41] I am unaware as to what was discussed at the case conference or as between M.A.B. and her then lawyers. I would expect there would have been information, at the very least, provided to M.A.B. as to services provided by the Children’s Lawyer.
[42] The order requesting the involvement of the Children’s Lawyer, in all of the circumstances of this case, ought to have been on consent. M.A.B., I conclude, had no possible defence to this component of the motion.
[43] There was an evidentiary dispute regarding the exchanges. Regardless as to which version is correct, it was obvious from the evidence at trial that problems occurred on exchanges. For example, S.M. acknowledged some exchanges were late and that there was conflict between him and S.S.L., including at least one heated argument on September 9, 2021.
[44] S.M. understood the term in the order of April 13, 2021, prohibiting his attendance on exchanges, saying such was explained to him by a police officer. He continued attending on exchanges despite police officers telling him to follow the court order.
[45] M.L. should not be exposed to adult conflict, including on exchanges. There was no need for S.M. to attend the exchanges, there being others to perform the task if M.A.B. does not wish to do so herself. I thus conclude, M.A.B. had no possible defence to the request in the motion directing S.M. not to attend exchanges.
[46] As previously mentioned, M.A.B. offered no dispute to the police enforcement term and, indeed, presents the same request in her answer. Given the history of conflict and problems related to cancelling visits and on exchanges, this term is of obvious necessity.
[47] I have a somewhat different perspective on the issue of prejudice than advanced by Mr. Paquette. I agree, S.S.L. would be prejudiced if the order is set aside. He relies on that order, in part, in his position, particularly the impact on his parenting time and the issues occurring on exchanges. As to M.A.B., in my view she may be prejudiced if her motion is dismissed given the possible adverse inference in declining to participate in the Children’s Lawyer investigation. Such, however, is not a relevant consideration on her motion as M.A.B. made a deliberate decision with full knowledge.
[48] The principle referred to in Wilson is relevant to the factor regarding the impact on the integrity of the administration of justice. Parties, and others with knowledge of the order, are expected to comply with the direction from the court. As has often been said, court orders are commands, not recommendations. In this case, the order of April 13, 2021, was not followed by M.A.B. and S.M. There is no report from the Children’s Lawyer regarding the most important issue in this case, parenting of M.L. There have been repeated and unnecessary problems on exchanges. Setting aside the order would have a negative impact on the integrity of the administration of justice.
Summary
[49] For the reasons above, the motion by M.A.B. to set aside the order granted April 13, 2021, is dismissed. As the motion was heard during the trial, costs of the motion will be addressed following the release of my reasons for decision on that trial.
Gordon, J.
Released: November 28, 2022
COURT FILE NO.: FC-19-FS44
DATE: 20221128
ONTARIO
SUPERIOR COURT OF JUSTICE
S.S.L.
Applicant
– and –
M.A.B.
Respondent
REASONS FOR JUDGMENT
Gordon D.J., J.
Released: November 28, 2022