Abdulsada v. Al Jaishi, 2025 ONSC 2199

Court File No.: FS-23-0003628-0000
Date: 2025-03-11
Superior Court of Justice – Ontario
RE: Noor Abdulsada, Applicant
AND: Ali Al Jaishi, Respondent
Before: Natasha Mathen
Counsel:

• Laaiba Nawal, for the Applicant
• Gabrielle Pop-Lazic, for the Respondent
  Heard: March 11, 2025

Endorsement

[1] This is a continuation of a motion first heard on December 10, 2024.

[2] The Respondent wants to set aside a final order issued by Des Rosiers J. on August 9, 2024, following an uncontested trial. The order included parenting, child support, spousal support, an equalization payment of just under 2 million dollars, and costs.

[3] The Respondent says that, if the final order is set aside, he intends to challenge the Court’s jurisdiction on the basis that the Applicant was not resident in Ontario.

[4] After hearing arguments, I determined that the motion should be continued in order for the parties to make further submissions on the following:

a. With regard to setting aside an order for lack of notice, what if any is the distinction between properly being served with the initiating documents and becoming aware of them? Does actual awareness place any corresponding obligation on that party to, for example, alert the opposing party or the Court that they were not properly served?

b. If a party seeking to set aside a final order under Rule 25 also raises a question of jurisdiction, when and how should that question be addressed?

[5] The parties submitted written arguments in January 2025 and appeared for a further oral argument.

[6] Having reviewed their arguments and submissions, I have determined that the Respondent’s motion must be granted. The final order shall be set aside on the basis of improper service.

Lead-Up to This Motion

[7] The parties married on May 3, 2007. They have two children born in 2009 and 2010.

[8] The Applicant says that, in October 2021, the parties travelled to Turkey for a month. Following an argument, the Applicant went to Iraq with the children at the end of October and returned to Canada in March of 2023.

[9] The Respondent disagrees with this account. He says that, in 2020, after forming an intention to relocate to Turkey, the parties purchased a property there where they lived for approximately ten months. The Respondent returned to Canada to settle their affairs. The Respondent acknowledges the Applicant’s travel to Iraq, but denies that the parties had separated at that time. He says they did not separate until early in 2023, when the mother stated she no longer wished to live in Turkey.

[10] The Respondent says the parties had a religious divorce in Iraq in 2023 and that he started divorce proceedings there before she did in Canada.

[11] The Applicant mother issued her Application on May 18, 2023. On July 19, 2023, she served it on the Respondent at his father’s address in Ontario. She deposes that the Respondent was residing there at the time. She says that this was common knowledge among their family members (the parties are cousins). She did not include additional affidavits to this effect.

[12] The Respondent deposes that he has been residing in Turkey since early 2023 and obtained his permanent residence there on June 15, 2023.

[13] The Respondent says that his father does not speak English, did not understand what was being left with him and did not forward the document to the Respondent. The Applicant deposes that the Respondent’s father does understand English.

[14] The Applicant filed a written motion to proceed via an uncontested trial on August 28, 2023. She received an order for same on November 14, 2023. That led to the decision and order referred to in paragraph 2 of these reasons.

[15] A copy of that order was served on the Respondent at his father’s address in Niagara, Ontario, on August 19, 2024. This time, according to the Respondent, “[o]nce my father received the order he told my brother and my brother told me as my father cannot read English.” In other words, the Respondent received the final order right away.

[16] The Respondent retained Canadian counsel in early September 2024. His counsel wrote to the Applicant’s lawyer on September 12, 2024, asking for the order to be set aside on the basis of improper service. The Applicant declined and told the Respondent to proceed with this motion.

[17] The Applicant submitted screenshots of conversations between the Respondent and his sister, indicating that he may have been aware of them despite not being served.

[18] The Respondent seeks to set aside the final order on the basis of, inter alia, Rule 25(19)(d) of the Family Law Rules.

Issues

[19] The issues to be decided are:

a. Was service effected consistent with Rule 6(3)(d)?

b. If the answer to “a” is no, and the Respondent became aware of the Application through other means, is that relevant?

c. Should the Respondent wish to challenge the jurisdiction of Ontario to hear the larger proceeding, does that affect this motion?

d. Is it appropriate to set aside the final order?

e. Are costs appropriate?

The Law

Service

[20] The Rules of Civil Procedure and the Family Law Rules provide for how notice of a court process shall be effected. Where service is sought on a person outside of Canada, Rule 17 of the Rules of Civil Procedure apply as the Family Law Rules are silent on this issue.

[21] Under Rule 8 of the Family Law Rules, service of an application shall be effected by special service, defined in Rule 6 as:

a. leaving a copy,

i. with the person to be served…

b. leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;

c. mailing a copy to the person …; or

d. leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address. [emphasis added]

[22] Under Rule 10, a person ordinarily has 30 days to respond to an application made against them. If they are located outside of Canada, they have 60 days.

[23] Where a document served by an alternative to personal service does not come to the defendant’s notice, the plaintiff bears the burden of showing that service was effected within the rules: Maillis v. Mirage Resorts Inc., 2013 NSC 1556 at para. 26.

[24] Where a judgment is irregularly obtained, such as by lack of service, it will normally be set aside due to the absence of due process: Maillis at para. 27.

[25] In Royal Trust v. Dunn, the plaintiff effected service on a solicitor who did not forward the application to the respondent. In discussing alternatives to personal service, Borins J. (as he then was) described them as containing internal “safeguards”. He noted that the plaintiff bears the risk that such safeguards may fail and the document does not come to the other party’s attention.

[26] In Mohammed v. Mohammed, 2014 ONSC 7376, the court rejected a claim of improper service. The respondent argued that the Affidavit of Service did not clearly state that he was being served, the other persons residing at the address did not tell him about the application left with them, and he was rarely at the matrimonial home and never checked his mail. The court found that the respondent was trying to evade service. On that basis, it declined to strike service even if the document had not come to the respondent’s attention.

Changing a Final Order

[27] Rule 25(19)(d) of the Rules provides that the court may, on motion, change an order that was made without notice.

[28] The court has broad remedial powers under Rule 25(19), including to set aside the whole of a final order, or to set aside part of a final order: Gray v. Gray, 2017 ONCA 100, at paras. 26-27; Benarroch v. Abitbol et al., 2018 ONSC 5964 at para. 28.

[29] When determining whether to set aside a default order or judgment, the court should have regard to, among other things:

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.

Zia v. Ahmad, 2021 ONCA 495, at para. 4.

[30] Where a party moves to set aside an order on the basis of faulty service, the respondent to the motion has the onus to prove the service was effected in accordance with the Rules: Irons v. Irons, 2020 ONSC 1471 at para. 135.

Jurisdiction

[31] In Capone v. Fotak, 2022 ONCA 430, the Court of Appeal for Ontario considered the question of attornment in circumstances where a defendant asserted a defect in service:

Attornment refers to the situation where a party has, through its actions, agreed to submit to the jurisdiction of the court. Under r. 16.01(2) and r. 17.06(1) of the Rules of Civil Procedure, a party who files a Notice of Intent to Defend is then estopped from asserting that the service should be set aside. When, as here, a party waives any potential defect in service by its conduct in attorning to the jurisdiction or in not moving to set aside service under r. 17.06 before filing a Notice of Intent to Defend, it may not later claim the proceeding is a nullity because it was not served.

Analysis

Issue One: Was service effected consistent with Rule 6(3)(d)?

[32] In order to be effective, service under Rule 6(3)(d) requires that a copy of the application must be left “at the person’s residence”. Therefore, key to this dispute is whether the Respondent was living at his father’s address.

[33] Once a claim of inadequate service is brought, the party seeking to rely on that service must demonstrate that it was proper.

[34] On a balance of probabilities, I am not persuaded that the Applicant’s method of service was valid, because I am not persuaded the Respondent was living in Niagara in July 2023. At the time, the Respondent was a permanent resident of Turkey. The Applicant cannot point to any direct evidence that the Respondent was, in fact, living in Niagara.

[35] According to the Applicant’s evidence the parties separated in 2021. In her trial affidavit, she deposed that the Respondent was a completely absent father. There is no evidence that she had any personal contact with him in the summer of 2023. Her reliance on unnamed family members who “knew” that the Respondent was living with his father is insufficient.

[36] Therefore, I have no alternative but to find that the proper service was not effected.

Issue Two: If the answer to the first question is no, but the Respondent became aware of the Application through other means, is that relevant?

[37] The Applicant argues that there should not be “a distinction between being served properly and being aware of the pleadings”. If the Respondent did become aware of the pleadings, he had an obligation to either respond or to inform the Applicant that he does not reside at the Niagara address.

[38] The Applicant argues that the Respondent was aware of the Application, because of text messages recovered between him and his sister. In addition, she challenges the Respondent’s account that his father would not have been able to recognize the document left with him.

[39] I do find the information about the Respondent’s father puzzling. On one hand, the Respondent notes his father’s lack of English as the reason that, in July 2023, he was incapable of recognizing the Application for what it was. On the other hand, when the final order was left with him, he handed it to the Respondent’s brother almost immediately. In the absence of additional information, I am unable to decide this one way or the other. Consequently, while I have some doubts, they are not enough to conclude that the Respondent did become aware of the Application from his father.

[40] The Applicant further argues that the Respondent was aware because she found messages between him and his sister which show that he was sent screenshots of the pleadings. The Applicant attached an undated screenshot of one such message. The Respondent swears that he has never seen any of these messages.

[41] As the text messages are hearsay, they must be especially cogent to be relied upon. In this case, I am not persuaded that they are. The chief text message is undated and the Applicant’s account of how, exactly, she came upon it is confusing. The Applicant had the duty to depose to facts sufficient for the court to accept her version of events on a balance of probabilities. She has not, and there is a specific denial from the Respondent. I am unable to determine who is more credible on this question.

[42] I add that the Applicant’s argument that the Respondent “became aware” of the Application implicitly concedes that he was not living in Niagara. Given all the circumstances, that would imply that he was residing in Turkey. If so, then under the Rules the Respondent had 60 days to answer the Application. The Applicant filed her motion for an uncontested trial before 60 days had passed.

[43] As there is insufficient evidence that the Respondent became aware of the pleadings, I need not decide whether he had an obligation to advise the Applicant or the court that he was not living at his father’s house.

Issue Three: If the Respondent wishes to challenge Ontario’s jurisdiction, does that affect this motion?

[44] The next issue is one of sequencing. The Respondent indicated an intention to challenge Ontario’s jurisdiction to hear the initial application.

[45] At the first hearing of this motion, I posed the question of whether the Respondent’s jurisdiction challenge needed to be heard first, or if proceeding with this motion would require him to attorn to Ontario.

[46] Having reviewed the parties’ arguments, I am satisfied that the Respondent’s motion may proceed. First, unless the Respondent is able to challenge the initial order, there is no longer a lis over which he can assert that Ontario lacks jurisdiction. Second, given that the Respondent is not asserting a lack of jurisdiction on this motion, I believe that it is not necessary to address that issue.

Issue Four: Is it appropriate to set aside the final order?

[47] Having determined that the initial order was made without notice, it remains to decide what is the appropriate remedy.

[48] The Respondent argues that the order must be set aside in its entirety. He argues that he moved quickly once he learned of the Order, and that any failure to respond initially was due entirely to lack of notice.

[49] The Respondent argues that “he intends to challenge the Ontario court’s jurisdiction to determine the matters in dispute in this proceeding” on the basis that “the parties were not resident in Canada, they had formed the intention of relocating to Turkey and that is the jurisdiction where the parties last resided with their children.” The Respondent says that the Applicant’s own evidence supports this finding as she did not return to Ontario until March 2023, three months before commencing her application.

[50] While this is a difficult case, for the following reasons, I find that there is no alternative to setting aside the order:

a. The Applicant has not shown on a balance of probabilities that she served the Respondent in accordance with the Rules.

b. There is no evidence that the Respondent had notice of the proceedings. Unlike Mohammed, I am not persuaded that the Respondent was evading service. In that case, the Respondent was living at the address where service was effected. That is not the case here.

c. The Respondent advised the Applicant very soon after he received the final order that he was contesting service.

d. The uncontested trial dealt with parenting, decision-making, child and spousal support, property and equalization.

e. While the Respondent likely does not have an arguable case about Ontario’s jurisdiction with regard to the children who are resident in the province, he may have one with respect to the spousal support and property claims.

f. The Applicant, and the children, will suffer some prejudice from being unable to enforce the final order (with which the Respondent has not, as yet, complied). But the Respondent will suffer greater prejudice from being bound by an order, addressing many of the parties’ issues, coming out of a proceeding in which he was unable to participate.

[51] Consequently, it would be unjust to leave the original order in place.

[52] Given that I must set aside the order, it is appropriate to provide some scaffolding for next steps in this file. I do so pursuant to the court’s authority under Rule 2 to deal with cases justly. The court is specifically concerned for the welfare of the parties’ children.

[53] Plainly, the Respondent has had the pleadings for some time. He shall have 35 days to file his Answer, which shall include a sworn financial statement. The Applicant may have a further 10 days to file a reply. The parties shall attend To Be Spoken To Court (“TBST”), on all issues, on Monday, May 5, 2025. They shall file TBST briefs by the preceding Friday at 2 pm. The May 5 appearance may be changed on consent. In that case, unless they settle their issues, the parties shall attend TBST court as soon as is practicable without delay.

Issue Five: Are costs appropriate?

[54] The parties uploaded their Bills of Costs. Their costs cover the initial appearance in December as well as this continuation. The Applicant posted costs of $10,081.86 and the Respondent, $14,496.80.

[55] The Respondent prevailed on this motion.

[56] The Applicant deposed that she is impecunious – a fact confirmed in the final order. She is caring for two children. She deposed, and the Respondent did not contest, that she has received no child support, or any other support, since returning to Canada in March 2023. Given the context, I will defer costs to a final disposition of this matter.

Order

[57] In conclusion, I make the following order:

a. The Final Order dated August 9, 2024, is set aside.

b. The Respondent shall file his Answer, including a sworn financial statement, within 35 days of this Order.

c. The Applicant may file a reply within 10 days of receipt of the Respondent’s answer.

d. Both parties shall attend To Be Spoken To Court, on all issues, on Monday May 5, 2025. They shall file TBST briefs the preceding Friday by 2 pm.

e. The May 5 TBST appearance may be changed on consent. In that case, unless they settle their issues, the parties shall attend TBST court as soon as is practicable.

f. Subject to further court order, costs shall be reserved to the trial judge.

Natasha Mathen
Date: March 11, 2025