Ontario Superior Court of Justice
Court File No.: FC-24-00000195
Date: 2025/04/07
BETWEEN:
Constance Audrey Marie Garcia (Applicant)
– and –
Kyle West – Personal Representative of Manuel Javier Garcia (Deceased) (Respondent)
– and –
Helen-Ann Learmont Garcia (Respondent)
R. Van Buskirk, Counsel for the Applicant
T. Moum, Counsel for the Respondent Kyle West – Personal Representative of Manuel Javier Garcia (Deceased)
K. Marynick, Counsel for the Respondent Helen-Ann Learmont Garcia
Heard: March 26, 2025
The Honourable Justice J. Breithaupt Smith
Reasons on Motion
- On March 26, 2025 I heard the Applicant’s motion to set aside the Order of Justice Piccoli dated October 25, 2024. The Applicant’s motion is dismissed, and these are my reasons for reaching this decision.
Notice and Default
- The Applicant pleads that notice of the motion originally brought by the second Respondent, Ms. Helen-Ann Learmont Garcia (“Ms. H. Garcia”) was somehow insufficient. I see no evidence in support of that contention. The motion materials were served upon counsel for the Applicant after hours on August 13, 2024, making service effective August 14, 2024. Counsel for Ms. H. Garcia waited until October 4, 2024 to file the motion materials with the court. They were uploaded to Case Center on October 9, 2024. For reasons that appear to be internal to the office of Applicant’s counsel, the motion materials were mislaid from the Applicant’s perspective and no response was generated. Consequently, when the motion came before Justice Piccoli in Chambers in mid-November, it was uncontested.
Availability of Summary Judgment Motion Procedure
Rule 16 of the Family Law Rules governs summary judgment motions in family litigation. Justice Piccoli’s Order was made pursuant to Rule 16(12)(c)(i). It was a summary judgment motion to decide the legal issue of whether the claim ought to be dismissed because the court has no jurisdiction.
The Applicant argued that summary judgment ought not to have been available to Ms. H. Garcia because she had not filed an Answer in this proceeding. However, Rule 16(1) which deals with the availability of summary judgment speaks to its timing as being “after the respondent has served an answer or after the time for serving an answer has expired” [my emphasis].
In the civil litigation context, the Rules of Civil Procedure divide the concept of a summary proceeding on substantive facts from the determination of a question of law. Civil Rule 20 deals with a motion for summary judgment on the evidentiary merits of a case. It contains many direct parallels to Family Law Rules 16(4)–(6.2), including, for example, the “mini-trial” and its associated powers for the determination of credibility. Civil Rule 21 addresses questions of law separately and parallels Family Law Rules 16(8); 16(12) and 16(13). In each of Civil Rule 21 and these directives regarding the determination of a question of law in family litigation, no evidence is admissible except by agreement between the parties. The language is comparable:
Rule 21.01 of the Rules of Civil Procedure:
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1)(a), except with leave of a judge or on consent of the parties;
(b) under clause (1)(b).
Rule 16 of the Family Law Rules:
(12) The court may, on motion,
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because,
(i) the court has no jurisdiction over it,
(ii) a party has no legal capacity to carry on the case,
(iii) there is another case going on between the same parties about the same matter, or
(iv) the case is a waste of time, a nuisance or an abuse of the court process.
(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.
I note further that Civil Rule 21 does not mention the filing of pleadings at all, in direct contrast to Civil Rule 20(2), which specifically requires the delivery of a Statement of Defence before a Defendant can move for summary judgment.
The Applicant relied upon the Court of Appeal case of Hevey v. Hevey, 2021 ONCA 740 in which the moving party, a husband who had clearly failed to provide fulsome financial disclosure in the context of a separation agreement that the wife sought to set aside, had not filed an Answer and yet sought summary judgment on the basis of the expiry of the limitation period. Whilst it was held that an Answer was a necessary prerequisite in that case, Justice Harvison Young, writing for the unanimous Court of Appeal, stated (at paragraph 29): “…without deciding whether an answer is always needed, an answer was needed here… Specifically, the answer would have been accompanied by a new sworn financial statement…”.
At issue in Hevey was the wife’s ability to convince the court that the limitations period should be extended under section 2(8) of the Family Law Act. That analysis turned on the sufficiency of financial disclosure at the negotiation of the separation agreement (the evidence being that the husband said his net worth was $NIL when in fact he held roughly $21 Million of undisclosed assets). In that context, the preparation of an Answer would have included service of a sworn Financial Statement. I pause here to note that, had Mr. Hevey served a sworn Financial Statement as part of his motion materials, the point may well have been moot.
In this case, the Applicant seeks recovery of life insurance proceeds that she believes have been paid to Ms. H. Garcia in violation of the separation agreement between herself and the deceased Manuel Javier Garcia. The Applicant argues that, as in Hevey, no determination can be made without the evidence provided by way of the facts pled in an Answer and the accompanying Financial Statement. However, a sworn Financial Statement would be effectively impossible for Ms. H. Garcia to complete – what would she use for the “date of marriage” or the “date of separation”? The Applicant argues that information regarding Ms. H. Garcia’s bank accounts could assist in determining the whereabouts of the life insurance proceeds, but data entered into a Financial Statement is not likely to assist in that investigation.
A question of jurisdiction is a straightforward question of law. Looking at the specific language of Family Law Rules 16(12) and 16(13) and having compared that language with Rule 21 of the Rules of Civil Procedure, it is clear that evidence is unnecessary in determining a question of law. I conclude that this case provides an example in support of Justice Harvison Young’s comments: in seeking summary judgment on a question of law under Family Law Rule 16(12)(c)(i), an Answer is unnecessary.
Having concluded that a motion for summary judgment was indeed available to Ms. H. Garcia in the absence of an Answer, I turn now to the test for setting aside an order.
Setting Aside an Order
Firstly, it is important to note that the Court of Appeal has already opined upon the breadth of Rule 25(19) of the Family Law Rules in connection with the tension between appealing an order and moving to set it aside. In Gray v. Gray, 2017 ONCA 100, the Court of Appeal held that family law litigants may appropriately rely on Rule 25(19) of the Family Law Rules to set aside an order, including one made on an uncontested basis.
In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Court of Appeal held that in determining whether the interests of justice favour granting an order to set aside a default judgment, the court ought to consider the following factors:
i. whether the motion was brought promptly after learning of the judgment;
ii. whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules;
iii. whether the facts establish that the defendant has an arguable defence on the merits;
iv. 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
v. the effect of any order the court might make on the overall integrity of the administration of justice.
- These factors are intended for consideration: they are not rigid rules, but rather provide guidance in the overall weighing of prejudice as between the parties with a view to determining whether it is just to relieve the moving party of the consequences of default. It is not necessary to find each factor to set an order aside.
i. Timing
- Justice Piccoli’s Order, dated October 25, 2024, was not uploaded to Case Center until November 14, 2024. This is a direct result of chronic understaffing due to an apparent disinterest by all levels of government in the efficient administration of justice. It is undoubtedly administrative delay, and thus any accounting for the passage of time must start on November 14, 2024. The Applicant’s original motion materials are dated January 29–31, 2025 and were served on February 3, 2025. This is a span of 11 weeks. While this may or may not be considered “promptly after learning of the judgment,” this point was not argued before me and thus I will give the Applicant the benefit of the doubt.
ii. Explanation for Default
- I have already commented upon the proper service of the summary judgment motion materials and the passage of time thereafter. I do not see any reasonable explanation for the absence of a response to the summary judgment motion materials.
iii. Arguable Defence
The bulk of the argument at the motion hearing focused on the third factor, namely whether the Applicant has an arguable defence to the position put forward by Ms. H. Garcia for summary judgment. The question is one of legal jurisdiction: Ms. H. Garcia argued, and Justice Piccoli agreed, that this court has no jurisdiction to adjudicate between the Applicant and Ms. H. Garcia. The Applicant contests this and asks to have Justice Piccoli’s Order set aside so that a fulsome argument on the summary judgment motion can be conducted.
The Unified Family Court is included as part of the “Family Court” branch of the Superior Court of Justice described at sections 21.1–21.15 of the Courts of Justice Act. I appreciate that my role at this stage is not to determine the legal issue of jurisdiction. However, it is important to read section 21.8 and its attendant schedule properly, not as a limitation upon the jurisdiction of the Family Court as suggested by the factum of Ms. H. Garcia, but rather as a delineation of the specialized expertise of the Family Court. Section 21.8 mandates that certain types of matters “shall be commenced, heard and determined in the Family Court.”
Section 21.8 and the schedule, read together, do not say, as is suggested at paragraph 15 of the factum of Ms. H. Garcia, that “the law is very clear: this Honourable Court has statutory jurisdiction and statutory jurisdiction only.” That statement would apply to the Family Branch of the Ontario Court of Justice, but in connection with this court, it is patently false; as Justice Tellier explained at paragraph 29 of Highland Shores Children’s Aid Society v. K.Y., 2019 ONSC 5070:
[29] It would be an unjust outcome if I were to read Christodoulou to preclude me from rendering any decision other than as a UFC judge. This would require me to transfer this motion for a complete reconsideration on the merits to one of my colleagues in the SCJ who occupy Chambers along the same corridor as mine. This would be contrary to my duty to promote the primary objective of the Family Law Rules. That primary objective is to deal with cases justly. This includes the duty to ensure that the process is fair and to deal with cases in a way that is appropriate to their importance and complexity. The duty also requires me to attempt to save time and expense and, notably, to allocate court resources appropriately having regard to the nature of the cases before me.
Again, I would emphasize that my role at this stage is not to reach a conclusion on the merits of the jurisdictional argument, but rather to determine whether the Applicant has an arguable defence on the question of jurisdiction. In Mountain View Farms Ltd., the Court of Appeal explained, at paragraph 51: “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.”
The term “air of reality” is commonly used in criminal matters in the context of a judge’s gatekeeping function in putting potential defences to a jury only where such defences have an “air of reality” on the evidence presented at trial. A defence need not have a likelihood of success and could be based entirely upon the subjective evidence of the accused. However, if the facts in support of the defence have an “air of reality,” then the possible defence is put to the jury. The “air of reality” test focuses on the presence or absence of evidence, not on its quality, sufficiency or weight. (See R. v. Cinous, 2002 SCC 29.)
Is there an “air of reality” to the proposition that the cause of action between the Applicant and Ms. H. Garcia is most properly brought in the Unified Family Court?
Applicant’s counsel cites Britton v. Britton Estate in support of the argument that the Unified Family Court is the proper forum. In that case, the Divisional Court heard an appeal from the General Division of the Superior Court. The Divisional Court’s appellate decision was rendered thirty years ago, and no clear parallel between the General Division’s scope of authority and the specialized role of the Unified Family Court was provided in argument. I do not see the Britton case as helpful to the current discussion.
Counsel for Ms. H. Garcia argues that the determination of liability between his client and the Applicant can only be conducted via the application of the Succession Law Reform Act in the context of a dependent’s relief claim. Such matters are regularly addressed in the Superior Court of Justice but rarely come into the Unified Family Court.1
There is otherwise no connection between Ms. H. Garcia and the Applicant covered by the schedule to section 21.8 which delineates the Unified Family Court’s area of expertise. Ms. H. Garcia is the second wife of Mr. Garcia – there is no spousal connection between her and the Applicant. She is not a party to the separation agreement under which Mr. Garcia agreed to maintain the Applicant’s beneficiary status on his life insurance to secure spousal support.
Counsel for the Applicant argues that his client may be able to make out a trust claim against Ms. H. Garcia, and that trusts are regularly determined in the Unified Family Court. While certainly trust claims are adjudicated in the context of determining the ownership and division of property between spouses in our specialist court, trust claims between unrelated individuals are not. Such matters are dealt with in the civil litigation business line of the Superior Court.
Counsel for the Applicant further argues that Ms. H. Garcia must remain a party to this litigation pursuant to Rule 7(3)(b)(ii) as a “person who should be a party to enable the court to decide all the issues in the case.” I must disagree with that statement for practical reasons. The main contention is that Mr. Garcia bestowed a benefit upon Ms. H. Garcia that was already allocated to the Applicant. If this court were to authorize (or worse, require) every party in the position of Ms. H. Garcia to be named in the family court litigation, we would find ourselves adding many family members, business partners, and arm’s-length entities to our proceedings. If, instead of paying arrears of child support, a person uses his or her disposable income to purchase a vehicle, would we add the car dealership as a Respondent?
It must be remembered that the question of jurisdiction in this case is not the standard discussion around, for example, the habitual residence of a child for the purpose of determining parenting issues. Here, the jurisdiction question becomes a balancing of the best forum, as between the Unified Family Court and the generalist Superior Court, for determining the issues between the Applicant and Ms. H. Garcia.
Overall, I do not see an arguable defense to the assertion that the Unified Family Court is the wrong forum for the action between the Applicant and Ms. H. Garcia. There is no “air of reality” to the assertion that the case against Ms. H. Garcia is best brought in the Unified Family Court.
iv. Prejudice
In this unique situation, the third factor connects directly with the fourth factor as the alternative – bringing the action in the civil division of the Superior Court – provides an avenue to avoid prejudice against the Applicant’s ability to potentially recover damages from Ms. H. Garcia.
Mr. Garcia died in March of 2024; one year has passed.
A proceeding must be commenced under the dependants’ relief provisions of the Succession Law Reform Act within six months of the issuing of the Letters Probate. Evidence regarding the current state of Mr. Garcia’s estate administration was not provided on this motion, and therefore I cannot opine on any associated prejudice. I note, however, that section 61(2) of the Succession Law Reform Act allows a court to extend that limitations period “if it considers it proper” to do so.
Otherwise, tort actions or actions under the Insurance Act are covered by the Limitations Act, 2002, which sets the basic limitation period at two years from the date of discoverability. Here, I would suggest that the date of discoverability would not necessarily be the date of Mr. Garcia’s death but rather the date upon which the Applicant learned that the life insurance proceeds would not be paid to her. Thus, we are still well within the applicable two-year limitation period.
Finally, it seems to me that the Applicant will not have spent any considerable additional amount on legal fees in making her claim against Ms. H. Garcia other than for the argument of this motion. The documentation prepared for her Application against Mr. Garcia’s estate would largely have been the same whether Ms. H. Garcia was included or not.
I turn now to the prejudice to Ms. H. Garcia that would arise from the setting aside of Justice Piccoli’s Order and the re-visiting of her original motion as an argued motion. While there is, perhaps, a small risk that the Applicant would succeed in setting the Order aside following fulsome argument (although I have already determined that the Applicant’s defence does not have an “air of reality”), the real risk to Ms. H. Garcia is in the expenditure of legal fees. The Applicant has not filed a Financial Statement in this proceeding, and therefore her ability to pay legal fees is unknown. When the original motion was brought to dismiss the action for want of jurisdiction, no costs were sought by Ms. H. Garcia, and none were ordered by Justice Piccoli. I think it entirely possible that considerable costs could be ordered against the Applicant should this matter proceed any further; the risk of non-recovery may be very real. Certainly, the protraction of this matter will weigh heavily upon all parties.
On balance, I conclude that the upholding of Justice Piccoli’s Order dismissing the action as against Ms. H. Garcia is less prejudicial to the Applicant than its setting aside would be to the Respondent.
v. Effect on the Integrity of the Administration of Justice
It is no secret that the Unified Family Courts across this Province are struggling with staffing issues at every level. Our local complement (which is based on decades-old data) is fixed at five judges – after almost six years of operation, we reached that complement only earlier this year. For a period of time in 2024, we operated with only three judges at the Unified Family Court in Kitchener.
It is not merely an honourable goal to seek to provide litigants with timely access to justice; in the context of family litigation, it is a foundational principle of the Unified Family Court. Rule 2(2) of the Family Law Rules sets the primary objective of this court as “dealing with cases justly.” Rule 2(3) expounds upon that concept:
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
There is more than ample work to be done to assist families in crisis, including married and unmarried couples and the difficult determination of child protection matters. To add to that caseload by accepting claims under other legislation such as the Succession Law Reform Act and the Insurance Act would be the height of folly in these circumstances, particularly when our excellent and capable generalist colleagues are ready, willing, and able to adjudicate those matters.
Further, and while again confirming that Family Court judges are not limited by statute to the adjudication of a defined scope of subject-matter, to add general litigation proceedings to our docket could have the effect of watering-down the intentionally specified and expert approach that is embodied by our court. We are human, and if, as specialists, we are asked to regularly dabble in matters with which we do not usually engage, the results may be undesirable for litigants and for the development of the jurisprudence.
Consequently, I conclude that the potential opening of floodgates to non-family-focused matters which may flow from the setting aside of Justice Piccoli’s Order would detract from the integrity of the administration of the Unified Family Court.
Conclusion and Order
In sum, I find that the Applicant’s motion to set aside Justice Piccoli’s Order made on summary judgment pursuant to Rule 16(12)(c)(i) must be dismissed. Justice Piccoli’s Order stands.
With respect to costs submissions, I refer counsel to the timelines prescribed in Rule 24(19) of the Family Law Rules. Submissions are to be filed through the Family Online Submissions Portal and sent by email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca, indicating in the subject line that they are to the attention of Justice Breithaupt Smith.
J. Breithaupt Smith
Released: April 7, 2025