Wilcox v. Cubitt, 2025 ONSC 2511

COURT FILE NO.: FC-24-00001251-0000 DATE: 2025/04/24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Emma Wilcox, Applicant AND: Aaron Cubitt, Respondent BEFORE: Justice F. Wood COUNSEL: Robert Wasserman, Counsel for the Applicant Respondent, Self-Represented HEARD: April 24, 2025 ENDORSEMENT The Applicant asks that I grant various orders on an uncontested trial. I decline to do so for the following reasons:

Reasons

1The Respondent was served with the Application at the John Sopinka Courthouse while attending an appearance related to criminal charges against him. I have no confidence that he either fully appreciated the importance of the documents being served upon him, nor that he had the ability to properly turn his mind to them while in the midst of an appearance addressing serious criminal charges.

2There is no evidence that Applicant’s counsel has made any effort to reach out to Respondent since serving him with the Application and related documents.

3The materials for the uncontested trial, including the Applicant’s affidavit and the proposed draft order have not been served upon the Respondent.

4As noted by Kristjanson J. in Roberts v. Santilli , 2019 ONSC 64 , the court must not only be assured that the Respondent has knowledge of the claim but also that he is aware that a final order is about to made against him. There may be circumstances in which there is sufficient evidence that the Respondent has no intention of participating in the proceeding that a final order may be granted without service of the materials intended to be relied upon at the uncontested trial, but typically that will not suffice. See also Berry v. Patterson , 2023 ONSC 3590 .

5The proper adjudication of serious family law matters requires more than mere formal notice. Fairness is integral to the process.

6Without requiring these steps in every case, best practice will typically involve the following minimum steps after service has been effected: a. Applicant’s counsel (or Applicant) should communicate with the Respondent to ensure that the Respondent has received the materials and understands the need to serve and file responding materials; b. Applicant’s counsel should provide some information on available resources to assist the Respondent (ie. FLIC, Duty Counsel, or the Guide to Process for Family Cases); c. If there is still no response, the materials for the uncontested trial, including a draft order, should be served upon the Respondent.

7A final order made without assurance that the Respondent genuinely has no intention of participating in the process risks being set aside on a motion to set aside, creating additional expense to both parties and further court delays.

[8] Finally, the affidavit in support of the uncontested trial is deficient. Much of the narrative is, for some reason, attached as an exhibit which, in turn, attaches several “schedules”. None of the schedules are properly made exhibits to the affidavit itself. Even on an uncontested trial, proper evidence is required to provide an evidentiary basis for the orders being requested.

Orders

Orders to go:

1. Pending the return of this matter, the child Maverick Aaron Wilcox, born May 19, 2024 shall have his primary residence with the Applicant.
2. The Applicant shall prepare a fresh affidavit and shall then serve all materials to be relied upon at the uncontested trial, including any draft order and this endorsement. Service may be effected via email at aaroncubitt.96j@gmail.com.
3. The Applicant shall advise the Respondent that failure to respond may result in a final order being made in his absence.
4. The uncontested trial is adjourned to a May 29, 2025 at 3:30 pm. ______________________ F. Wood J. Released: April 24, 2025