M.F. v. S.B., 2025 ONSC 2103
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.F., Applicant
AND:
S.B., Respondent
BEFORE: Justice Conlan
COUNSEL: N, Amiri, for the Applicant
S. Johnson, Agent for the Respondent
HEARD: April 3, 2025, via Zoom
ENDORSEMENT
1The added party did not appear. The added party did not serve or file or otherwise deliver or upload any materials, although properly served by the Respondent as required by the March 3, 2025 Order made by Justice Coats.
2Unopposed by the Applicant and unopposed by the added party, the CPL granted by Coats J. shall remain in place until trial.
3Unopposed by the Applicant and unopposed by the added party, the relief sought at paragraphs 5 and 6 of the Respondent’s Notice of Motion dated 07 February 2025 (Case Center Master page B2), essentially a preservation order regarding the property at 5129 Lakeshore Road in Burlington, Ontario, is granted.
4The Respondent’s request for an order granting her leave to file her Answer late is denied.
5The facts of this matter are significantly distinguishable from those in all of the authorities relied upon by the Respondent, including that most pressed by agent counsel for the Respondent, the decision of Madsen J. (as Her Honour then was) in Wilkinson v. Wilkinson, 2018 ONSC 1864.
6In that case, for example, the originating process sought all kinds of very serious relief related to parenting, support, and property. Very restrictive relief was sought as against the party who wanted to file an Answer late.
7In our case, the Application sought a simple divorce and nothing else. Relief that, on the evidence filed, the Respondent appeared to be content with upon being served with the originating process.
8In that case, the motion was decided about one year after the Application was commenced.
9In our case, the motion is being decided, and was heard, more than two years after the Application was commenced.
10In that case, the prejudice to be occasioned to the moving party, if not permitted to file an Answer late, was undeniable and massive. Mr. Wilkinson would have been effectively deprived of contesting the other side’s request that he be relegated to the role of an infrequent access parent to his children.
11In our case, the very highest the Respondent can put it is the following: if she cannot file an Answer, even though she can commence her own Application, the divorce will stand and she could or might be prejudiced in terms of some of the property claims that she intends to advance. Her very good agent lawyer, Mr. Johnson, said exactly that in submissions today: “if there is any prejudice to the granting of the divorce…”.
12In that case, the prejudice to be occasioned to Ms. Wilkinson was very little, especially given the serious concessions that Mr. Wilkinson agreed to as comprehensive terms of the granting of the leave that he sought.
13In our case, there are no concessions being offered by the Respondent. And the Applicant would be deprived of a divorce that both sides appear to have wanted and which was granted nearly five whole months ago.
14I agree with Justice Madsen (as Her Honour then was) that “the weight of the law appears to be in favour of granting an extension of time to file an Answer…” (paragraph 19 in Wilkinson, supra), but I also agree with Justice Faieta’s remarks in the case of A.B. v. C.D., 2022 ONSC 4933, at paragraphs 27-30: the deadline for filing an Answer is not to be treated as merely a guideline, nor should a failure to abide by that deadline be treated as a mere technicality. As with most things in our justice system, it all depends on the unique circumstances of each case.
15In our case, I am not satisfied that we ought to re-open this simple divorce Application. There are other avenues available to the Respondent. Her motion for an order permitting her to file an Answer late is dismissed.
16If not resolved between the parties, costs of the Respondent’s motion shall be dealt with in writing. Two pages per submission, excluding any necessary attachments. No reply is permitted. The successful Applicant shall file his written costs submissions within 15 calendar days after today, and the Respondent shall file hers within 10 calendar days after her receipt of the Applicant’s submissions.
17Finally, the Respondent requests that this Court vary the Order of Justice Coats made on March 3, 2025 in terms of required manners of service of documents, specifically to remove the extra requirement of service by mail on the added party, given the difficulties experienced by the Respondent in trying to have sensitive court documents served by mail to an address in Tehran, Iran. That relief is granted. The prior Order is varied accordingly.
18The end result is that the Respondent’s motion is granted in part but dismissed with regard to the request for an order to file an Answer late.
19The Respondent shall be responsible for taking out the formal court order that emanates from this Endorsement.
Justice Conlan
Date: April 3, 2025