Deanna Maria Carino v. Fillippo Mazzaferro
Court File No.: FS-23-00037790-0000 Date: 2024-10-08
Ontario Superior Court of Justice
Between:
Deanna Maria Carino Plaintiff
– and –
Fillippo Mazzaferro Defendant
Counsel: Jermall Estwick, for the Plaintiff Jonah Paritzky, for the Defendant
Heard: October 3, 2024
Before: Rhinelander J.
Reasons for Decision
[1] The Respondent brought this motion to set aside the Final Order of Justice Myers dated September 9, 2024, after an uncontested trial. The Applicant is opposed and requests the motion be dismissed.
Background:
[2] The parties were married on March 25, 2017, and have one child of the marriage, G.D.M., who will turn five in November.
[3] The parties separated July 2, 2020, and entered a separation agreement on August 11, 2020. G.D.M. was 9 months old. The Agreement addressed parenting time and provided for additional time upon agreement of the parties. The Respondent had been exercising parenting time with G.D.M. five of every fourteen days prior to the default judgment. The Respondent acknowledged this has been maintained since the Final Order.
[4] The Applicant initiated proceedings in the Superior Court of Justice to finalize corollary issues and obtain support. The Respondent was served with the Application August 28, 2023. The Respondent made several requests to file his answer late. Counsel for the Applicant followed up with the Respondent after two separate agreed upon deadlines had passed.
[5] Counsel for the Applicant communicated directly with the Respondent upon his becoming self-represented. The Respondent was advised via email if he failed to file an answer by November 10, 2023, and clear the arrears owing for child support, the Applicant would seek to have the Respondent noted in default and he would receive no further notice of the proceedings.
[6] On November 15, 2023, the Respondent requested a further extension as he had failed to serve an Answer and had not addressed the outstanding child support.
[7] A letter was sent to the Respondent advising the Applicant was proceeding with the matter to have him noted in default. The Respondent requested a fourth extension to November 28, 2023. The Applicant did not respond to this request. No materials were filed by the Respondent.
[8] An uncontested trial was heard in writing by Justice Myers on September 9, 2024.
[9] The Final Order provided the Applicant with sole decision-making responsibility, primary parenting time, child support for G.D.M. in the amount of $736 per month commencing October 1, 2024, and the sum of $135 per month for section 7 expenses commencing February 1, 2024.
[10] Justice Myers found the Respondent had not paid child support since May 2023, and is responsible for sixteen months of child support arrears of $11,746 as of September 30, 2024, and $775.58 in arrears for s.7 expenses to February 1, 2024. He is ordered to pay $250 per month commencing October 1, 2024, until it is paid off. This is in addition to the monthly child support and s.7 expense contributions. Costs of $10,000 were also ordered payable to the Applicant.
[11] The default judgment and Final Order were released to the parties on September 9, 2024. The Respondent immediately retained counsel to request to have it set aside.
Issues:
[12] Should the default judgment be set aside?
General Principles:
[13] This court's jurisdiction to set aside an order has been grounded in Rule 25(19)(e) of the Family Law Rules: Gray v. Gray, 2017 ONCA 100, at paras. 26-32.
[14] Rule 25(19) of the Family Law Rules reads as follows:
(19) 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.
[15] When rule 25(19) is applied, the onus is on the party who moves to set aside the order, in this case, the Respondent: Irons v Irons, 2020 ONSC 1471. The decision as to whether to set aside is a matter of judicial discretion: Mountain View Farms Ltd. v McQueen, 2014 ONCA 194
[16] As set out by the Court of Appeal, in Zia v. Ahmad, 2021 ONCA 495, at paragraph 4, the following factors must be considered in determining whether to set aside the Order:
a) whether the moving party moved promptly, after learning of the order, to have it set aside;
b) whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;
c) whether the moving party has established an arguable case on the merits;
d) whether the moving party is acting in good faith and with "clean hands";
e) the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and
f) whether, in the final analysis, the interests of justice favour setting aside the judgment.
Analysis:
a) Whether the moving party moved promptly after learning of the order to have it set aside?
[17] The Respondent retained counsel within a day of the Final Order being released. Efforts were made to find a mutually agreeable date to hear this motion within four days of the Order. The Applicant argued the Respondent had not participated in these proceedings for almost a year, and the actual notice of default occurred in November 2023.
[18] I find that the Respondent acted within twenty-four hours of receiving the Final Order to seek to have it set aside, despite having dragged his feet and failing to file an Answer in compliance with the FLRs.
b) Whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules?
[19] The Respondent was served with the Application and was provided with several opportunities to respond. He was advised on at least three occasions, in writing, of the Applicant's intent to proceed to obtain a default judgment lest he not file a reply. The Respondent had been provided several opportunities to file an Answer and participate in these proceedings. The onus is on him to meet the criteria to have the Order set aside.
[20] The Respondent asserted that he believed that the Applicant had withdrawn her application or opted not to pursue it. His basis for this belief is because i) the parties continued to communicate regarding their child, ii) the Applicant's counsel did not reply to his email sent November 21, 2023, where he asked about the arrears, apologized for the delay, asked for a further extension to November 28, iii) the Applicant's counsel did not respond to an email sent December 4 where he wanted to update counsel and advise that he would receive a draft in a few days, and iv) there was no further mention of the proceedings.
[21] The Respondent had notice of the proceeding but not the motion where the order was granted. The question to be answered is whether the Respondent's explanation is adequate or passable.
[22] The Respondent argued it wouldn't make sense for the Respondent to ignore this proceeding if he didn't mistakenly conclude the case had been withdrawn as he is actively involved in all aspects of G.D.M.'s upbringing and engages in regular correspondence with the Applicant to coordinate their parenting schedule. These actions are inconsistent with someone who would knowingly ignore a court proceeding respecting custody of his child.
[23] The Respondent relies on Gibson v. Ullrich, 2015 ONSC 5979, where Shelton, J. set aside a default judgment after concluding the Respondent must not have received proper notice of the court proceedings. In Gibson, efforts had been made to serve the Respondent personally without success. The Applicant was permitted to have the Respondent served by regular mail and leaving a copy of the documents at his residence. The Court, in Gibson, accepted the Respondent was unaware of the proceedings. Here, it is acknowledged the facts are different because the Respondent was served and was aware that proceedings had been initiated and that failure to respond would result in the Applicant seeking a default judgment against him.
[24] I am not satisfied with the Respondent's explanation for why he took no steps to confirm the proceedings had been halted. He did not provide monies to cover the arrears owing in child support despite making inquiries and advising counsel a draft would be sent shortly (whether his explanation regarding what he meant by a "draft" were accepted as funds or a draft of his answer) as nothing further was sent to the Applicant. He opted to ignore the issues at hand, the child support arrears, and the proceedings when no further replies were sent to his emails. It is important to point out he had no difficulty reaching out to counsel for the Applicant at the end of December to complain about issues regarding parenting time and what dates had been agreed upon but failed to inquire about the status of the proceedings.
c) Whether the moving party has established an arguable case on the merits?
[25] The Applicant argued the Order would not differ had the Respondent participated in the proceedings. Further, he has failed to provide any evidence other than his disagreement with the Order.
[26] It is the Applicant's position the parties are unable to communicate effectively. The Respondent harasses the Applicant and does not put the best-interests of G.D.M. in the forefront, but rather seeks to control the Applicant. The Respondent is unreliable, inconsistent, and unpredictable. His judgment is clouded and affects the well-being of G.D.M.
[27] The Respondent's position is the Order is "an enormous departure from the parenting arrangement the parties followed" insofar as it is now at the Applicant's discretion which "she shall not unreasonably withhold parenting time requests by the Respondent". He argued the Applicant understated his role in G.D.M.'s upbringing and he has an arguable defense on the merits that the Court may not have awarded the Applicant sole decision-making responsibility and subjected his parenting time to her discretion had he participated in the proceedings.
[28] The Respondent is not required to prove his claim will likely succeed but only that there is an arguable case on the merits. Phelan v. Givlin, 2023 ONSC 3917.
[29] I agree the Order does not provide the Respondent with clear and unequivocal parenting time. Since the Order, the Respondent's parenting time has not changed, and he continues to have G.D.M. five of fourteen days. The Order, as it stands, allows the Respondent to request additional time, which shall not be unreasonably withheld but permits the Applicant some control over unreasonable demands. This is the only issue upon which I see an arguable case on the merits.
[30] This is not to say the Respondent has not been involved in G.D.M.'s life and it is acknowledged that he fully embraces having a role in G.D.M.'s life by volunteering at the school, and coaching sport teams G.D.M. is registered in. On the evidence presented on this motion, the Respondent chooses what roles and involvement he has and when, and he unfortunately chose not to serve an Answer to address the relief sought by the Applicant.
d) Whether the moving party is acting in good faith and with "clean hands"?
[31] The Respondent argued he acted in good faith and with clean hands by attempting to resolve child support arrears. His position is if he had participated the Order may not have been made.
[32] The Applicant argued the Respondent was given several opportunities to file an answer and to address the arrears which continued to amass up until the date of the default judgment. Nor has he contributed to the section 7 expenses since February of this year.
[33] The Respondent is currently indebted to the Applicant for approximately $22,000. Although he has offered to take steps to make payment of the costs from the Order, this had not been done at the date of this motion.
[34] The Respondent does not come to the table with clean hands. Child support has not been paid on a regular basis since May 2023. He has failed to address the issue of arrears. In his argument, he asserts that had he been permitted to participate the order may not have been made. I disagree. He acknowledged he owed arrears. He claimed his email of December 4, 2023, referring to a "draft" meant a draft order for arrears. Yet, no monies were paid, or draft order sent to counsel for the Applicant, then or now.
[35] The Respondent argued he should be permitted an opportunity to participate. He had one. He chose to ignore it. Now he is concerned, upset, and wants to restart the litigation. He seeks an extension of time to serve a response and to cure the costs awarded to the Applicant. There was nothing preventing the Respondent to serve an answer last December or provide counsel with the "draft" he said would be forthcoming within a few days.
[36] The Respondent argued if the order is set aside, costs for the uncontested trial will be paid within thirty (30) days. This was set out in his motion materials, yet nothing has been paid.
e) What is the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed?
[37] The Respondent's position is the balance of prejudice favours him. If this motion is dismissed, he will be deprived of the opportunity to make an arguable case on the merits, whereas the Applicant will not be prejudiced by setting aside the judgment as she can still seek to obtain the same order and seek costs if successful.
[38] The Respondent argued there is "no downside" to permitting him to participate in the proceedings. Setting aside the judgment and ordering costs to be paid quickly, will strike an appropriate balance between the various competing interests at play.
[39] The Applicant argues the potential prejudice she may face if the motion is granted is substantial. She relies on the objectives of the FLRs and the need to have cases resolved justly. By permitting the matter to be relitigated after the Respondent intentionally ignored deadlines and extensions would set a bad precedent. The Respondent has failed to provide a sufficient basis upon which to set aside the Order.
[40] The Applicant complied with the rules and the Respondent did not. The objectives of the FLRs are to have cases resolved justly and fairly. The prejudice to the Respondent is he may have to bring a motion to change the Order and it will be his onus to establish a material change in circumstances. The prejudice to the Applicant is the proceedings will be further protracted and there will be no finality for her to focus on G.D.M.
f) Whether, in the final analysis, the interests of justice favour setting aside the judgment?
[41] The Respondent argues the interests of justice favour setting aside the default judgment and there is no downside to permitting him to participate in these proceedings.
[42] The Respondent relies upon decisions of this Court that endorse the practice of serving motion materials on the other party when seeking an uncontested trial or default judgment. Roberts v. Santilli, 2019 ONSC 64; Campeau v. Campeau, 2005 25948 (ON SC).
[43] The Applicant argues setting aside the judgment would disrupt the interests of justice and effectively upset the objectives of the FLRs. She has incurred significant legal fees due to the Respondent's continued delays and this motion. If the Order is set aside, there is no finality and there will be continued disruption in the lives of G.D.M. and her.
[44] While it would have been prudent to have served the Respondent with the motion to proceed with an uncontested trial, there is nothing in the FLRs that make a mandatory requirement. I would be remiss if I did not acknowledge the comments of Chown, J. in Phelan v. Givlin, 2023 ONSC 3917, at paragraph 33, "It is typically better for all concerned including the court and the non-defaulting client to ensure that the defaulting party has knowledge of the proceeding and the default hearing and appears to have chosen not to participate. When that is the case, the default judgment is much more likely to withstand a motion to have it set aside or changed. In the circumstances of this case, the applicant should have served her materials for the uncontested trial on the respondent."
[45] This case is vastly different than that of Phelan, however, it points out and addresses the problems that arise when a defaulting party is not served with the motion materials. In Phelan, the parties had been actively engaged in mediation, and in the midst of the process, the Applicant, without notice to the Respondent filed a motion for an uncontested trial and received judgment in less than two weeks.
Conclusion:
[46] The Respondent is not required to establish each of the six criteria as set out in Zia v. Ahmed. The Court has the discretion to determine whether the Order should be set aside. While the Respondent established, he acted immediately upon receiving the Final Order and may have an arguable case regarding parenting time, these are not the sole criteria upon which to set aside the default judgment.
[47] The Respondent had notice of the proceedings. He took active steps to seek extensions but failed to serve an Answer or to inquire as to the status of the proceedings. He does not come to the table with clean hands. The objectives of the FLRs are clear, it is to enable courts to deal with cases justly. This includes ensuring that the procedure is fair to all parties, saves time and expense, deals with cases that are appropriate to its importance and complexity, and gives appropriate court resources to the case while taking into account of the need to give resources to other cases.
[48] It is imperative that parties to proceedings, whether self-represented or not, comply with the rules. Parties cannot lie in the weeds or hope the matter will disappear with time if they ignore their obligations. Parties cannot sit back in hopes that further steps are not taken and if they are, that they can then seek to rejoin the proceedings. This would be contrary to the purpose and objectives of the rules.
[49] The Respondent is not without other remedies due to his deliberate decision to not serve an Answer and participate in the proceedings. Should the Applicant not continue the status quo regarding parenting time or unreasonably restrict it, the Respondent has recourse through a motion to change. Similarly, the Respondent may seek to change other terms of the Order if there is a material change in circumstances.
[50] After consideration of all the factors, I am not satisfied the Respondent has discharged his onus to set aside the Order made by Myers, J.
[51] If the parties are unable to agree on costs, written submissions may be filed with the Court within fourteen days of this decision, not to exceed three typed double-spaced font, with any offers to settle and bill of costs attached.
Rhinelander J.
Released: October 8, 2024
Court File No.: FS-23-00037790-0000 Date: 2024-10-08
Ontario Superior Court of Justice
Between:
Deanna Maria Carino Plaintiff
– and –
Fillippo Mazzaferro Defendant
Reasons for Decision
Rhinelander J.
Released: October 8, 2024