COURT FILE NO.: FS-22-0224-00
DATE: 2023-02-01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lori Foster (Deceased), Applicant
v.
Gordon Cripps, Respondent
York Region Ontario Works, Assignee
HEARD: January 19, 2023
BEFORE: Nieckarz J.
COUNSEL: M. Carter, for the Assignees (Respondent’s to the Motion)
J. Wilcox, for the Respondent (Applicant on the Motion)
Endorsement on Motion
Overview:
[1] The Respondent (Mr. Cripps) seeks to set aside the Order of Justice Nelson dated May 6, 2002 (the “Order”). The Order was made following an uncontested hearing. Child support was awarded to the Applicant (Ms. Foster) in the amount of $111.00 per month.
[2] Mr. Cripps says that he never received notice of the proceedings or notice that the order had been made. The first he became aware of the Order was in February 2022, when the Family Responsibility Office (FRO) sought to enforce arrears that had accumulated to the benefit of assignees.
[3] Ms. Foster died on August 7, 2013.
[4] The support order had been assigned to Ontario Works York Region (March 1, 2002 to July 31, 2006) and the Ministry of Children, Community and Social Services (August 1, 2006 to June 30, 2008 and December 1, 2009 to August 31, 2013). What FRO seeks to enforce is that portion of accumulated arears that are subject to these assignments. The assignees dispute the request to set aside the Order, arguing that the legal test for such relief has not been satisfied by Mr. Cripps.
[5] As of December 15, 2022, the amount sought to be enforced by FRO on behalf of the assignees was $3,890.57. Mr. Cripps says that the arrears being enforced are $5,947.71.
[6] For the reasons set out below, the motion is dismissed.
Background:
[7] Mr. Cripps and Ms. Foster were involved in a brief relationship between September 1998 and February 1999. Mr. Cripps says that the relationship was not exclusive, and that Ms. Foster was involved sexually with other men.
[8] The child, Andrew Foster, was born June 26, 1999. Mr. Cripps says that he was aware that Ms. Foster was pregnant, but they had separated months before the child’s birth. He says that Ms. Foster told him the child was not his. He says he had no relationship with the child.
[9] Ms. Foster is not able to provide her version of events. Her court documents filed in support of the Order is the only evidence as to what she says happened. In those documents she alleged that she and Mr. Cripps were in a relationship that broke down as a result of violence committed against her, by Mr. Cripps, during her pregnancy. She says he is the father. She acknowledged that Mr. Cripps had no relationship with the child. If her allegations are true, it is suggested that this was because of Mr. Cripps’ alleged violent tendencies.
[10] Ms. Foster alleges a violent history of abuse by Mr. Cripps against a former spouse and their then young children. Among other allegations, she points to an incident in which Mr. Cripps is alleged to have taken his other children hostage, requiring a SWAT unit and approximately thirteen police officers to “take him down”. In addition to custody and child support, she sought a restraining order as a result of this history, her own alleged experiences of violence with Mr. Cripps, and an unpleasant interaction with Mr. Cripps in February 2002, when he received a letter from “welfare” requesting child support for the child.
[11] The letter dated February 21, 2002, was from a Family Support Worker for Community Services and Housing Department of the Regional Municipality of York (Ontario Works). It stated that Ms. Foster was seeking child support. It requested financial information to calculate the appropriate amount of support. It threatened court if the information was not provided.
[12] The letter was mailed to 342 Annsheila Drive, Keswick, Ontario. Based on Ms. Foster’s affidavit, it quickly came to the attention of Mr. Cripps. In addition to paying a visit to Ms. Foster, Mr. Cripps left two messages for the family support worker. The messages stated that he was not the father of the child, wanted nothing to do with the child or Ms. Foster, and that he wanted no further involvement in the case.
[13] Mr. Cripps states that at the time the letter was sent he was living in Elliott Lake, Ontario. The letter had been sent to the address of his former spouse. She contacted his mother to advise him of the letter. His mother passed along the message, and Mr. Cripps contacted his former spouse. She read him the letter. He acknowledges having called Ontario Works.
[14] As Mr. Cripps did not comply with the demand, an Application was commenced by Ms. Foster on February 28, 2002.
[15] Prior to commencing the Application, on February 27, 2002, Ms. Foster brought an ex parte motion for temporary custody, a restraining order, and substituted service on Mr. Cripps, by serving him at his sister’s address at 246 Elgin Street, Newmarket. It was subsequently discovered that neither Mr. Cripps nor his sister lived at Elgin Street. It is unclear why she sought substituted service at this address when the letter had been sent successfully to the Keswick address.
[16] On March 6, 2002, Ms. Foster was granted a further order for substituted service, authorizing her to serve the Application and other materials on Mr. Cripps by mail to 342 Annsheila Drive, Keswick. She endeavoured to send the documents to this address, but they were returned with the envelope marked with the words “Please do not send this back to this address. No one by this name lives here!” and “This person unknown to this address. Please return to sender.”.
[17] Mr. Cripps says that he did not receive these materials. He says that he heard nothing more after leaving the February 25th, 2002, message for the family support worker. He states that his former spouse did not inform either him or his mother that she had received any more mail for him.
[18] On March 21, 2002, an endorsement on the record indicates that the court was aware that “service still remains a problem as the documents that were mailed to the resp were returned” [sic].
[19] On May 6, 2002, Ms. Foster appeared before Justice Nelson for a case conference, which was converted to an uncontested hearing. The endorsement reveals that she was assisted by duty counsel and the family support worker for York Region. She filed an affidavit for uncontested trial.
[20] The affidavit indicated that in the past Mr. Cripps had worked at various minimum wage jobs. The endorsement of Justice Nelson was very brief. It does not address the service issues. It grants custody to Ms. Foster and child support in the amount of $111.00 per month commencing March 1, 2002, based on an imputed income of $13,700 per year.
[21] No payments were made by Mr. Cripps on account of the order over the past 20 years other than some payments received by FRO by way of a federal garnishment in 2004, 2005, 2008, 2016, 2017, 2018, 2019, 2020, 2021, and 2022.
[22] Mr. Cripps was also paying child support to another support recipient during this time and says he believed the payments realized from the federal garnishment to be on account of this other order. Mr. Cripps states that he was in arrears of this other order at the time the garnishments occurred.
[23] Mr. Cripps states that he was not served with the Application and he had no idea that Ms. Foster had started the court proceeding against him. He says it was only after being notified by the FRO that they were going to enforce the support order, that he actually became aware that a support order existed.
[24] Attached to Mr. Cripps’ affidavit in this proceeding is an Amended Federal Support Deduction Notice dated February 4, 2022. He says that this is the first he became aware of the Order. This notice states that support is being deducted from federal payments for the benefit of “THE ESTATE OF LORI A FOSTER” in the amount of $5,947.71.
[25] Mr. Cripps states that after receiving this notice he asked his mental health support worker to look into the matter for him. The evidentiary record supports this. On May 25, 2022, correspondence was sent from FRO to Mr. Cripps’ support worker at Alpha Court attaching a statement of account and the Order.
[26] FRO confirmed to Mr. Cripps’ support worker that they are only enforcing arrears owed to assignees. The amount that the Ministry affidavit says is owing is different than the statement of arrears.
[27] Mr. Cripps states that he has been on and off Ontario Disability Support Plan benefits (“ODSP”) since 1993. He says he had no income between 2001 and 2004. During this time, he says he was living in a group home, incarcerated, and at times was living with another female. In 2004 he went back on ODSP. There is no other information as to his finances, but presumably they remain limited.
ANALYSIS:
Positions of the Parties:
[28] Mr. Cripps argues that the Order, which was made 20 years ago, should be set aside because he had no notice or knowledge of the original proceeding and no opportunity to respond. He is adamant that the child is not his and that there is no support obligation that should have been ordered. He denies having had notice of the Order itself.
[29] The assignees argue that Mr. Cripps should not be rewarded for his failure to address this issue twenty years ago. They argue that there needs to be some finality in litigation and in the making of orders, and it is damaging to the integrity of the administration of justice to allow someone to come back before the court twenty years after an order was made, disavow any knowledge of it or of their obligations, and particularly in circumstances such as this when the other party is dead and cannot provide the court with a complete picture of what had happened over the years.
Legal Framework:
[30] Mr. Cripps relies on the decision of Braun v. Braun, 2022 ONSC 7031. Mr. Carter agrees that the decision correctly provides for the legal analysis. In that decision Bordin J., at paras. 15-24, provides a useful outline of the relevant legal principles, which may be summarized as follows:
a. Rule 25(19) of the Family Law Rules, O. Reg. 114/99 (the “Rules”) provides that a court may change an order that 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.
b. Also a consideration is Rule 2. Rule 2(2) contains the primary objective of the Rules, which is to deal with cases justly. Rule 2(3) prescribes that dealing with cases justly means ensuring that the procedure is fair to all parties; saving time and expense; and dealing with matters in ways that are appropriate to its importance and complexity.
c. Caselaw in Ontario has confirmed the various remedies available under Rule 25(1), including:
i. Setting aside the whole of a final order: Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65, at paras. 26-27;
ii. Change, vary, suspend, or discharge a final order: Gray, at paras. 26-27;
iii. 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
iv. Correct or add to a final order: Benarroch, at para. 29.
d. The factors for the court to consider when determining whether to set aside a default order or judgment were set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49:
i. Was the motion to set aside the default judgment brought promptly following the moving party’s discovery of the judgment;
ii. Has the moving party established that there exists a plausible excuse or explanation for the default;
iii. Has the moving party provided sufficient evidence to establish that there is an arguable case on the merits;
iv. What is the potential prejudice to the moving party should the motion be dismissed versus the potential prejudice to the responding party should it be allowed; and
v. What is the effect of the order sought on the overall integrity of the administration of justice.
e. The factors in Mountain View Farms are not to be treated as rigid rules, but rather the court is to consider the circumstances of each case to decide whether a party should be relieved from their default: Mountain View Farms, at para. 50.
f. To demonstrate an arguable case, the moving party need not show that they will be successful, but that their position has an air of reality: Mountain View Farms, at para. 51.
g. In assessing an arguable case, credibility may be considered at this stage. More is required than self-serving statements devoid of detailed evidence supporting key assertions: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, at para. 28.
h. While there is broad discretion and flexibility under the Rule 25(19), at least one of the five preconditions in Mountain View Farms must be engaged before the broad discretion can be invoked: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70.
Discussion:
[31] The question to be decided is whether justice requires that the Order be set aside.
Plausible Explanation for the Default:
[32] Mr. Cripps insists that he did not have notice of the original proceeding. While he acknowledges receiving the letter threatening a proceeding, his ex-spouse never told him about the subsequent documents that were sent to her address.
[33] The Respondents argue that Mr. Cripps was aware of a potential claim for support and that he potentially had a child. The letter sent to the Keswick address came to his attention. While the Respondents acknowledge that Mr. Cripps may not have had actual notice of the proceeding, they say he put his “head in the sand” and simply did not do anything. He did not update his address with the Ministry after having received the letter. They argue he should not be rewarded for his conduct.
[34] The original Application materials that were mailed to the Keswick address were returned. I assume, although the materials do not say, that they were returned unopened.
[35] Mr. Cripps’ evidence is that his children with his ex-spouse (“Tammy”) had been removed from her care and were living with his parents. Tammy called his parents upon receiving the original letter and communicated the contents to them. This made Mr. Cripps aware of a potential support obligation. His response was a call to the family support worker and tell them that the child was not his and he wanted nothing more to do with this.
[36] I accept that Mr. Cripps did not see any of the court documents and he did not have actual notice. The documents sent to Keswick and Elgin were returned. Having said this it is odd that Tammy would notify Mr. Cripps through his parents of the first letter and open it yet return the second package unopened. Given that the court proceeding was started mere days following the letter being sent, in the absence of evidence to the contrary I can only presume it was Tammy who returned the package. It is impossible to know whether Mr. Cripps instructed her to do so, or whether she did this of her own accord. We do not have any evidence from Tammy.
Was the motion brought promptly?
[37] Mr. Cripps says that the first he became aware of the Order was when he received the FRO notice of the amended federal garnishment in February. He immediately brought it to the attention of his mental health support worker and they began investigations to find out what was going on. Mr. Wilcox advises that he has also been assisting Mr. Cripps and it took some time to gather the Newmarket file to find out exactly what had happened.
[38] If I accept that the FRO notice was the first time Mr.Cripps became aware of the Order, then I accept that the motion was brought promptly. The difficulty is that the evidence leads to more questions than answers and I am not convinced that this was the first time Mr. Cripps became aware of his obligation under the order.
[39] In saying this, I acknowledge that Rule 25(13) requires service of the order, but there is no evidence as to whether any attempts to serve the order were made. The court would have prepared the order given that Ms. Foster was self-represented. There is nothing in the evidence that suggests any attempt to serve the order was made on Mr. Cripps.
[40] I also acknowledge Mr. Cripps’ prompt dealing of the issue once he received the FRO notice.
[41] Having said this, clearly FRO knew how to locate Mr. Cripps despite the fact he seems to have moved multiple times over the years. There is no evidence from Mr. Cripps as to whether he received prior Federal Support Deduction Notices or any other information from FRO with respect to enforcement of his arrears. The contents of his FRO file (if available) are not before me to know what communication they have had with him over the years, if any. If there was no communication, there is no evidence as to how Mr. Cripps’ location suddenly came to FRO’s attention. FRO was enforcing another support order in which Mr. Cripps was the payor. I find it likely that they have known his location and sent him documents pertaining to his support obligations to Ms. Foster prior to February 2022.
Is there an arguable case on the merits?
[42] Again, it is impossible to know. Mr. Cripps’ argument for not having to pay the support arrears is that the child is not his. He does not allege that he did not have the income imputed to him during the period in question, and therefore did not have the ability to pay support. There is no evidence as to his finances.
[43] Is there an air of reality to this argument? If Ms. Foster was engaged in sexual relationships with other men when the child was conceived, it is plausible. The difficulty is that Mr. Foster is no longer alive and cannot dispute those allegations. The location of the child, who is now an adult is not known. I do note that the family support worker confirmed that Mr. Cripps’ message in February 2002 disputed paternity at that time. Ms. Foster acknowledges in her materials for the 2002 proceeding that Mr. Cripps did not have a relationship with the child. There is an air of reality to his argument.
Prejudice to the Parties:
[44] Assuming Mr. Cripps has an arguable case, he will suffer prejudice if the Order is not set aside. It is also likely that his income is limited and enforcement of the arrears could cause some financial hardship.
[45] Ms. Foster is deceased, and the amount being enforced by FRO will be paid to the assignees to partially offset benefits paid to Ms. Foster. Those benefits were not paid conditionally upon receiving the support, although I accept the basic premise that support of a child should be the obligation of a parent (if they can pay) and not the state.
[46] On balance, the potential prejudice to Mr. Cripps outweighs the prejudice to the Respondents.
Effect on the Integrity of the Administration of Justice:
[47] In my view, this factor is the most important one in this case.
[48] Notice was given to Mr. Cripps of the proceeding based on an order for substituted service. He says that the substituted service did not cause the proceeding to come to his attention. Nelson J., was aware of the challenges with service. She had the same evidence before her as to the attempts to effect service as I have before me. She was also aware of Mr. Cripps’ call to the family support worker denying paternity. She would not have been aware that Mr. Cripps denies having gone to Ms. Foster’s home after hearing about the February 2002 letter. She was still satisfied on the basis of the evidence before her that a final order for support and other relief should be made. Twenty-years later Mr. Cripps asks me to go behind that order and set it aside. I do not have a transcript of that proceeding.
[49] I agree with the submissions of Mr. Carter that to do so negatively impacts the integrity of the administration of justice. In the circumstances and in the absence of evidence to the contrary, I find it likely that Mr. Cripps was aware that another package had been sent to Tammy’s home but given his response to the family support worker after receiving their letter, it is likely he instructed Tammy to return the package unopened. In the absence of evidence to the contrary it is also likely that Mr. Cripps has received correspondence over the years from FRO that refers to enforcement of the support order in favour of Ms. Foster.
[50] Even if none of this was the case, Mr. Cripps was aware in February 2002 that support was being sought for the child by Ms. Foster, and that a family support worker was helping Ms. Foster. He could have requested a paternity test in 2002. He could have provided an address for further correspondence or court documents. He did neither. He simply said he wanted nothing to do with the matter and washed his hands of it. In the meantime, Ms. Foster and the state continued to support the child that could be Mr. Cripps’ child, and that he could have a support obligation towards. In these circumstances, the interests of justice do not favour granting Mr. Cripps relief.
ORDER:
[51] For the foregoing reasons the motion is dismissed, without prejudice to the right of Mr. Cripps to bring a motion to rescind accumulated arrears on the basis that he did not earn the imputed income, cannot afford to pay, or otherwise. None of that evidence was before me and I made no findings of fact in this regard.
[52] In the circumstances, no costs are ordered.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
DATE: February 1, 2023
COURT FILE NO.: FS-22-0224-00
DATE: 2023-02-01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lori Foster (Deceased), Applicant
v.
Gordon Cripps, Respondent
York Region Ontario Works, Assignee
HEARD: January 19, 2023
BEFORE: Nieckarz J.
COUNSEL: M. Carter, for the Applicant
J. Wilcox, for the Respondent
ENDORSEMENT ON MOTION
Nieckarz J.
DATE: February 1, 2023