COURT FILE NO.: 169/02

DATE: 2022/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Carole Braun

Applicant

• and -

Timothy Abraham Braun

Respondent

Paula Ferré, counsel for the Applicant

Yaroslav O. Diduch, counsel for the Respondent

HEARD: December 8, 2022

THE HONOURABLE JUSTICE M. BORDIN

REASONS FOR DECISION

Overview

[1] The applicant moves to set aside the final order of Scott J. dated February 25, 2022 (the “Order”). The Order was made following an uncontested hearing on a motion to change brought by the respondent. The Order terminated the spousal support payable by the respondent pursuant to the final order of Mazza J. dated February 3, 2003. Scott J. ordered costs payable by the applicant.

[2] The applicant says the Order should be set aside or stayed because she had no notice or knowledge of the motion to change and no opportunity to respond. Similarly, she says she had no notice of the Order and did not have an opportunity to appeal.

[3] The respondent’s position is that there is no basis upon which to set aside the Order.

[4] The applicant filed eight affidavits and a factum in support of her short motion. The respondent filed one affidavit. Nowhere in those materials was there a copy of the Order or any other relevant orders. The applicant made almost no reference to any of the affidavits she filed, leaving it to the court to review the affidavit evidence.

[5] Arguably, the materials filed by the applicant violate the Notice to the Profession, Parties, Public and the Media published effective August 2, 2022, which set restrictions on materials filed for family motions.

[6] Notwithstanding these issues, the court proceeded with the hearing and reviewed the evidence filed.

[7] The respondent sought to reference evidence contained in affidavits not before the court but filed in the motion to change proceedings. The applicant took the position that it was improper to do so. The respondent says that the applicant violated the rules for the limits on evidence on short motions and he should not be precluded from relying on affidavits in the court record but not before the court on this motion.

[8] Pursuant to the Consolidated Practice Direction for the Central South Region, effective June 16, 2016 and amended several times to March 2020, it is the parties’ responsibility to provide accurate estimates of the time required for a hearing. If the parties were of the view that further affidavit material was required and further time required to argue this matter, they should have requested a long motion date which would allow for filing of further affidavit materials. The court is not considering evidence which is not before the court.

[9] However, the court may review the prior orders made and the overall progress of the litigation between the parties as reflected by the continuing record.

Background

[10] The parties were married on August 10, 1979, separated in November 1998 and divorced on August 8, 2003. They have three independent adult children who have their own families. The children are between 36 and 41 years of age.

[11] The respondent was born April 26, 1959, making him nearly 64 years of age.

[12] Mazza J.’s final order of February 3, 2003 required the respondent to pay spousal support to the applicant in the amount of $7,000 per month and required that she be named an irrevocable beneficiary of two of the respondent’s life insurance policies.

[13] On September 21, 2021, MacPherson J. made an order for substituted service. It allowed for service on two addresses of Danielle, one the of parties’ daughters, and by Facebook Messenger to the applicant’s account.

[14] The Order terminated the spousal support payable by the respondent pursuant to the Justice Mazza’s order and ended the respondent’s obligation to name the applicant as the sole and irrevocable beneficiary under his life insurance policies.

The Law

[15] The primary objective of the Family Law Rules, O. Reg. 114/99 (“Rules”), as outlined in rule 2(2), is to deal with cases justly.

[16] Rule 2(3) of the Rules prescribes that dealing with a case justly includes ensuring that the procedure is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and, giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[17] Rule 25(19) of the Rules provides that the court may, on motion, change an order that:

(d) was made without notice;

(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.

[18] Appellate caselaw in Ontario confirms that the remedies available to the court under rule 25(19) of the Family Law Rules are broad, including jurisdiction to:

a. set aside the whole of a final order: Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65, at paras. 26-27;

b. “change”, “vary”, “suspend”, or “discharge” a final order: Gray, at paras. 26-27;

c. set aside part of a final order: Benarroch v. Abitbol et al, 2018 ONSC 5964, 15 R.F.L. (8th) 33, at para. 28; and

d. correct or add to a final order: Benarroch, at para. 29.

[19] The Court of Appeal for Ontario in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, has set out the following factors for the court to consider when determining whether to set aside a default order or judgment:

1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;

2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;

3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;

4. 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

5. The effect of any order the motion judge may make on the overall integrity of the administration of justice.

[20] The applicant cites Lin v. Ha, 2017 ONSC 6917, which follows Mountain View Farms. A number of decisions have followed the test in Mountain View Farms: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 68.

[21] In Mountain View Farms, the Ontario Court of Appeal explained at para. 50 that, “[t]hese factors 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”.

[22] The Court further stated at para. 51 of Mountain View Farms:

… the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.

[23] 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.

[24] While there is broad discretion and flexibility under the Rules, and under rule 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 rule 25(19) of the Family Law Rules can be invoked: E.S.R. v. R.S.C., at para. 70.

Discussion

[25] The court must decide whether justice requires that the Order be set aside. This requires the court to determine:

a. whether the motion was brought without notice as in rule 25(19)(d);

b. whether the notice of the motion to change proceedings was ‘inadequate’ as in rule 25(19)(e); or

c. whether the Order should be set aside in the interests of justice, in consideration of the Mountain View Farms factors applied in a manner that reflects the unique context of a family court proceeding.

The Mountain View Farms Factors

Plausible Explanation for the default

[26] The applicant insists that she did not have notice of the motion to change.

[27] The applicant deposed that she lived at 111-18777 68A Avenue, in Surrey, British Columbia (“Surrey property”) from August of 2014 to April 1, 2021, when she moved to another property she owned with her daughter and rented out the Surrey property to Andrea Sharkey. The applicant does not say which daughter she resides with.

[28] Andrea Sharkey swore an affidavit dated August 2, 2022, in which she said that she was a tenant at the Surrey property and that if any documents had been left for the applicant they would have come to her attention. She further indicated that she may have stepped out on the day that the respondent’s process server attended the Surrey property.

[29] The parties’ daughter, Meagan, swore an affidavit dated August 2, 2022. In that affidavit, Meagan acknowledged that her father texted her on August 17, 2021, to say:

I need a favour. I need to get some paperwork to your Mom. Is she still on Clayton in Surrey or did she rent out that place? If she did move can you give me her address so this can be delivered?

[30] Meagan said that, if her father had sent her documents, she would have at least told her mother about them. However, she also admits that she did not reply to her father’s August 17, 2021 text and that she did not tell her mother about the text because she did not want to upset the applicant.

[31] Another of the parties’ daughters, Danielle, swore an affidavit dated August 4, 2022. Danielle lives in Abbotsford, British Columbia. She said she does not live with her mother.

[32] Danielle deposed that in 2018, she told her father never to contact her again for any reason and, if he did so, she would call the police and consider it harassment. Danielle acknowledges that she received two packages from a lawyer's office addressed to "Carole Braun, c/o Danielle Braun". For reasons she does not explain, she says she “guessed” they were from her father. She said that she wrote "Return to Sender" and sent the packages back without opening them and that she never told her mother about this because contact with her father triggers her symptoms of post-traumatic stress disorder and she sought to protect her mother. She clearly understood these were packages from her father for her mother. From the evidence, it does not appear that she called the police as she alleged she told her father she would if he contacted her.

[33] The applicant swore an affidavit on August 9, 2022. Among other things she deposed that:

a. She redirected mail sent to her Surrey property for 12 months to her new B.C. address and she did not receive any notice of the motion to change by mail;

b. She said more efforts could have been made to contact her in Surrey;

c. She received a “new message request from Lancaster Chown Welch” on June 7, 2022 through Facebook Messenger, however, she did not open it;

d. Lancaster Chown Welch was unknown to her; and

e. The letter from the respondent’s lawyer in May 2021 was sent to 68 Avenue rather than 68A Avenue and did not reach her.

[34] Although not referenced specifically in her affidavit, the exhibit with the Facebook message clearly indicates that Lancaster Chown Welch was writing to the applicant and the message states: “We are hereby serving you with our client’s Motion to Change materials as per the court order of MacPherson J. of September 21, 2017.” The message is dated October 26, 2021. The applicant’s affidavit does not say that she did not see the message – only that she did not open it.

[35] The respondent swore an affidavit on August 31, 2022 in response to the previously referenced affidavits.

[36] The respondent confirms that he attempted to contact Meagan (as acknowledged by her) and Danielle to inquire of the applicant’s new address when he learned that she could not be served in Surrey. Neither responded to his inquiries which is not denied by either of them. The respondent says he was not aware that the mail address to the Surrey property would be forwarded to the applicant’s new address. He was not aware of any other places where the applicant lived.

[37] The respondent deposes that he contacted the applicant’s B.C. realtor, Stephanie Anderton, who confirmed she was the listing agent for the applicant in listing the home for lease. Ms. Anderton said she had the applicant’s new address and contact information but could not provide it.

[38] The applicant submitted the affidavit of Stephanie Anderton in response. Ms. Anderton acknowledges she is a realtor in British Columbia. Ms. Anderson says she has no recollection of the conversations the respondent alleges he had with her seeking the applicant’s contact information. However, she does not deny the conversations took place.

[39] The respondent denies that Danielle told him never to contact him again and spends a portion of his affidavit on unhelpful matters pertaining to their relationship.

[40] The respondent deposed that he and Meagan have remained in contact and that she has never wanted to be involved in the issues between the parties. Meagan does not deny this. When he did not receive a response from Meagan to his text, he assumed that she did not want to be involved.

[41] The respondent said that Danielle has been involved in the parties’ affairs since their separation, that he knew her business address, and so he had two addresses for service of his materials.

[42] The respondent sent a text to Danielle on September 6, 2021 to say that he had legal papers that needed to be delivered to the applicant and asking for the applicant’s address. Danielle did not respond. Danielle does not deny this.

[43] Danielle swore another affidavit on November 23, 2022, in reply to the respondent’s affidavit. The affidavit is about Danielle’s relationship with her father and allegations of historical abuse of the applicant by the respondent and does not assist the court.

[44] The applicant swore another affidavit on November 22, 2022, in reply to the respondent’s affidavit to rebut some of the statements made by the respondent.

[45] The continuing record in this matter discloses that there has been at least one prior motion to change with respect to spousal support which was extensively litigated by the parties between 2014 and 2018.

[46] This court does not accept that the motion to change did not come to the applicant’s attention. The evidence of Danielle indicates she knew her father was writing to her mother. The order for substituted service indicates that service was to be on two of Danielle’s addresses. Danielle acknowledges receiving two packages. The respondent texted both daughters to let them know he was trying to contact the applicant. The Facebook message to the applicant from the respondent’s lawyers specifically references a motion to change and a new order of MacPherson J. of September 21, 2021. The applicant had been involved in litigation for four years over a motion to change. She would know what a motion to change meant. The applicant chose not to open the Facebook Messenger message. She does not deny seeing it.

[47] The applicant should have known there were legal proceedings being brought against her. If she did not know, she was recklessly and willfully blind to this and was evading service.

[48] Spousal support having been indexed, the applicant’s last support payment on February 24, 2022 was $7,484.12. Given the applicant’s position that she requires the spousal support to meet expenses, it stretches credulity to believe that for three months the applicant did not receive spousal support almost $7,500 per month, support which she had been receiving for almost 20 years, and she did not notice or take immediate steps. Either her financial need is very overstated, or she was aware of the motion to change and the Order, and she waited several months before taking any steps.

[49] This supports the court’s conclusion that the applicant was either ignoring the information available to her that the respondent was bringing a motion to change, or she was willfully blind to it.

Was the motion brought promptly?

[50] In her August 9, 2022 affidavit, the applicant says when she did not receive spousal support she contacted the Family Responsibility Office in May 2022, three months after the Order. She learned of the Order on May 30, 2022. On May 30, 2022, the applicant’s lawyer put the respondent’s lawyer on notice that she would seek to set aside the Order. The applicant paid the costs on or about July 12, 2022.

[51] The court finds the motion was brought promptly.

Is there an arguable case on the merits?

[52] The applicant asserts need on the basis that she is not working, has no income, and that she was married to the respondent for almost 20 years. She says she is almost completely dependent upon the respondent and the spousal support.

[53] It is undisputed that the parties separated in 1998 – 24 years ago. Support has been paid since at least March 2003 until the termination of support by the Order – a period of 19 years.

[54] The applicant points to the fact that Justice Mazza’s order required spousal support to be paid until she remarries or dies. She has not remarried and is not cohabiting with anyone “in a relationship resembling marriage.”

[55] The applicant has produced DivorceMate calculations based on the respondent’s disclosed income and her income which show support payable in between $4,032 and $5,376 for a duration of 9.75 to 19.5 years from the date of separation. The DivorceMate form discloses the applicant was 39 at the time of separation.

[56] The respondent made the minutes of settlement executed by the parties on May 2, 2003 (“Minutes”) an exhibit. The Minutes provide for the variation of spousal support in the event of a material change of circumstances of either party. Specifically, paragraph 12.4 of the Minutes state that “if a party is entitled to a variation, it may seek the discharge, variation, suspension, decrease or increase, prospectively or retroactively, of an obligation to pay or of any arrears or of the amount of any support or maintenance.”

[57] The respondent has provided some context in his affidavit to the basis for the Order. The respondent’s financial statement attached to his affidavit indicated that he continues to earn significant income but claims expenses which entirely offset his income. The respondent deposes that given the closure of two divisions of his business, economic loss of his business, and reduction in his income, Scott J. found, in making the Order, that a material change in circumstances had occurred, thus permitting the termination of spousal support to the Applicant.

[58] The Minutes disclose that the applicant was working and earning some income at the time of the Minutes. The applicant says that she has not worked since 2014 and is unable to do so. Her financial statement discloses no CPP disability or ODSP income. There is no evidence of an application for or denial of these benefits.

[59] Both parties referenced dated expert reports regarding the applicant’s ability to work. The applicant attached as an exhibit an expert report that is six years old from September 2016 that says she is not able to work. In his affidavit, the applicant referenced excerpts of an older expert report from January 30, 2016, that says the applicant can work in several areas of employment. The evidence tendered by both parties is not properly before the court in the form of an affidavit from the experts adopting their conclusions, let alone adopting their conclusions as representing the present-day status of the applicant’s ability to work.

[60] Beginning in 2021, the applicant was no longer totally dependent upon the respondent because in March of that year she began renting out her Surrey property. Her financial statement discloses that she received $2,500 per month from the property and that the carrying costs of the property and mortgage were approximately $1,800 per month. The applicant says that she could not pay the mortgage after the tenant advised in August 2022 that she was terminating the lease. The applicant has tendered no evidence as to why she could not rent the premises again. The property has already been sold with the net proceeds of $237,055.09 paid to the applicant.

[61] The applicant’s financial statement discloses that the applicant has savings and RRSPs of approximately $89,000.

[62] The applicant lives with a daughter. The applicant’s financial statement discloses that she is the 66 percent owner of another property in British Columbia. According to the financial statement, the applicant has equity of at least $100,000 in the property.

[63] Both parties question the financial disclosure of the other.

[64] The applicant’s son, Evan, swore an affidavit on August 9, 2022. Evan said that he has reviewed his mother’s finances and is aware that she is unable to make ends meet “only on the rental income” she began receiving in 2021. Evan said that on August 6, 2022 (three days before the affidavit) he learned that the tenant provided notice of intention to terminate the lease and that he “will therefore have to fund the mortgage until the home is rented out again.” He also says that his mother is relying on her savings and will likely run out of funds later in August. However, no evidence was provided that any of this actually occurred. Evan was not tendered as an expert witness. It is not clear why this information is not in the applicant’s affidavit. The evidence is given little weight.

[65] The evidence of financial need is not persuasive. The DivorceMate calculations submitted by the applicant suggest that she has reached the end of the range of the period for spousal support. She has sold the Surrey property and has substantial proceeds from the sale. She owns another property with significant equity. The evidence is, at best, equivocal whether the applicant can work.

[66] The respondent is almost 64 years old. Some of his business has come to an end.

[67] On the evidence before this court, the applicant has not satisfied the court that she has an arguable case on the merits.

Prejudice to the parties

[68] Assuming she had an arguable case on the merits, the applicant would suffer prejudice if the Order is not set aside.

[69] The respondent asserts there would be prejudice to him if spousal support is retroactively reinstated. At this point, he would owe approximately $75,000 in retroactive support.

[70] On balance, the potential prejudice to the applicant would somewhat outweigh the prejudice to the respondent.

Effect on the integrity of the administration of justice

[71] The applicant asserts that her fundamental right to justice was breached by having no notice of the respondent’s motion to change, no notice of his motion for substituted service, and no notice of either the Order or the September 21, 2021 order of MacPherson J. for substituted service.

[72] As discussed below, this is not a case of no notice. Notice was given based on an order for substituted service.

[73] Ignoring attempts by an opposing party to contact and serve documents and then later moving to set aside orders obtained in your absence negatively impacts the integrity of the administration of justice. Parties cannot lie in the weeds, taking a wait-and-see approach to litigation and then, if the outcome does not suit them, move to set aside the order to reset the clock and restart the litigation. This wastes judicial resources and results in unnecessary costs to all parties.

Motion made with notice and service adequate

[74] The applicant asserts the motion to change was made without notice and service was inadequate and can be set aside on that basis. The motion was made on notice by way of substituted service. Accordingly, it cannot be a motion made without notice.

[75] On this motion, this court cannot go behind the order of MacPherson J. for substituted service, especially where the evidence before the court on that motion is not before this court: E.S.R. v. R.S.C, at paras. 92-97. MacPherson J. must have been satisfied with the evidence before her to grant the order for substituted service. That order provided for substituted service by two means. The first by mailing a copy to the parties’ daughter Danielle in Abbotsford, British Columbia, to both her home address and her business address. Secondly, by sending a copy to the applicant through Facebook Messenger.

[76] At paragraph 35 of her factum, the applicant acknowledges that the respondent arguably complied with MacPherson J.’s order for substituted service but says there was a failure to disclose facts.

[77] Where a motion is made without notice, the failure to make full and frank disclosure may be sufficient grounds to set aside the ex parte order obtained. Setting aside the order is discretionary.

[78] It has been repeatedly held that the non-disclosure must be of material facts. Where material facts are not disclosed, it may result in setting aside the order obtained. Material facts constitute those facts that the judge hearing the motion may well need to arrive at his or her decision. Material facts are those which may affect the outcome of the motion: see for example Shaw Communications Inc. v. Young et al., 2021 ONSC 7918, at para. 15.

[79] The applicant asserts that the respondent failed to advise MacPherson J. that his relationship with Danielle had been severed and that she would not cooperate with him. Leaving aside the respondent’s denials and assuming the position put forward by the applicant is accurate, it does not mean that the respondent or the court would expect that Danielle would not communicate the information to the applicant. There is no evidence that Danielle was not communicating with her mother. The applicant speculates that this information “might” have changed the outcome of the motion for substituted service.

[80] Similarly, the applicant deposes that she believes that if MacPherson J. had been told the respondent remained in touch with Meagan, MacPherson J. might have ordered substituted service through Meagan instead and it might have come to her attention. As noted above, the respondent sought the applicant’s contact information from Meagan and Meagan did not respond. Meagan did not tell her mother about the text from her father. It is unlikely she would have advised the applicant of materials served on her. Again, this is all speculation on the part of the applicant.

[81] In the circumstances of this case, this information is not material and would not have affected the outcome of the motion for substituted service.

[82] For the reasons set out above, the court finds that there was notice of the motion to change and that it was adequate.

No opportunity to appeal

[83] The applicant also argues that the Order should be set aside because it was not served in accordance with rule 25(13)(a) which would have allowed the applicant to appeal the Order within the 20 days provided by the Rules.

[84] Rule 15 (13)(a) provides that a person who prepared an order shall serve it on every other party.

[85] The only evidence the applicant can point to that she did not receive a copy of the Order is her bald statement in paragraphs 4 and 42 of her August 9, 2022 affidavit that she never received the Order until she stopped receiving spousal support for several months. The court is not required to accept this without something more in light of the other evidence before the court.

[86] The applicant’s final argument is that the Order should be stayed pursuant to rule 38(25). This rule applies to appeals and is not applicable here.

Order

[87] For the reasons set out above, there shall be a Final Order to go as follows:

1. The applicant’s motion to set aside the Final Order of Justice Scott dated February 25, 2022 is dismissed.

2. The parties are encouraged to resolve the issue of costs of the motion themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:

a. By the respondent on or before December 23, 2022;

b. By the applicant on or before January 11, 2023; and

c. If no submissions or written consent to an extension are received by the court by December 23, 2022, the matter of costs will be deemed to have been settled.

3. All submissions are to be filed with the court by Friday, December 23, 2022, with a copy emailed to the judicial assistants at St.Catharines.SCJJA@ontario.ca as well.

M. Bordin, J.

Released: 2022-12-13