Court File and Parties

Court File No.: FC-24-00000363-0000
Date: 2025-01-23
Court: Superior Court of Justice, Family Court - Ontario

Applicant: Rhianna Kristina Hassan Campbell
Applicant Counsel: S. Brown

Respondent: Yitzhak Lewin
Respondent Counsel: J. Grossman

Heard: January 15, 2025
Before: Robert B. Reid

Introduction

[1] The respondent seeks an order setting aside the final order of Bordin J. dated August 15, 2024 and permission to file an answer, affidavit and financial statement within 30 days. The respondent also seeks an order requiring the parties to schedule a case conference with the trial coordinator.

Background

[2] The parties had a relationship from September 2022 through November 2023. They are the parents of LML, born July 13, 2023, who resides primarily with the applicant.

[3] The applicant commenced an application. A first appearance was held on May 15, 2024. No responding material was filed by the respondent. An uncontested trial was heard on August 15, 2024 in the absence of the respondent, resulting in the order of Bordin J. which dealt with decision-making responsibility, parenting time, and child support as well as ancillary orders.

[4] The respondent received a copy of the August 15, 2024 court order on September 9, 2024 and attended at the courthouse in Hamilton on September 11, 2024 when he requested and received a copy of the court file.

Position of the Parties

[5] The respondent denies that he was properly served with the application and supporting documents and states that he had no knowledge of the uncontested trial proceedings. He wishes to defend the matter.

[6] The applicant denies that there was improper service and states that the respondent had knowledge of the proceedings through his counsel but chose to take no steps to respond. She asks that the motion be dismissed so that the order of August 15, 2024 will continue in full force and effect.

Applicable Legislative Provisions and Principles

[7] Rule 2 of the Family Law Rules identifies that the primary objective of the rules is to enable the court to deal with cases justly. That mandate includes ensuring that there is fair procedure for all parties, and also includes the saving of time and expense. Matters are to be dealt with proportionately to their importance and complexity.

[8] Rule 25, clause (19)(e) permits the court, on motion, to set aside an order that “was made on notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for reasons satisfactory to the court, to be present.”

[9] When considering whether to set aside a default judgment, the following factors must be considered as per the decision of the Ontario Court of Appeal in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 at paras. 47 - 49:

a. Was the motion brought promptly after the moving party learned of the default judgment?
b. Was there a plausible excuse or explanation for the moving party’s default in complying with the rules?
c. Did the moving party set out facts that support the conclusion that there is at least an arguable defence on the merits?
d. What is the potential prejudice to the moving party if the motion is dismissed compared with the potential prejudice to the responding party if the motion is granted?
e. What is the effect of any order the court might make on the overall integrity of the administration of justice?

Analysis

Exchange of Correspondence

[10] In February and March 2024, before the application was begun on March 25, 2024, the parties negotiated parenting time and other post-separation issues through counsel.

[11] On March 18, 2024, counsel for the applicant wrote to Alex Dolgonos, who had been corresponding on behalf of the respondent, asking: “[C]an you please clarify/confirm whether Mr. Saha is counsel of record for court purposes?” That same day, Mr. Dolgonos replied: “Sukanta [Saha] is copied and is counsel of record ….” On March 19, 2024, Mr. Saha wrote to counsel and said: “Just for clarity, I am the counsel of record for Mr. Lewin. Mr. Alex Dolgonos is a duly qualified paralegal and is my business partner. Ms. Elisa Sera who is also included in this email is my law clerk. Both Mr. Dolgonos and Ms. Sera are assisting me in this matter and are working under my supervision. Therefore, any communication from them to you is of the same effect as if it is coming from me.”

[12] On March 26, 2024, counsel for the applicant wrote to Mr. Dolgonos and Mr. Saha: “Please therefore be advised, Ms. Campbell has initiated her court application, which has now been issued. Please confirm if your office has instructions to accept service on Mr. Lewin’s behalf. If not, please advise so we may prepare arrangements to have Mr. Lewin personally served.” A response was sent to counsel by Ms. Sera on April 4, 2024 advising in part that: “I am writing to formally confirm that we are authorized to accept service on behalf of our client, Mr. Lewin.”

[13] The application, including the first appearance date of May 16, 2024, was served on Ms. Sera. Then on June 14, 2024, counsel for the applicant wrote to Mr. Saha confirming no receipt of responding pleadings and advising that the applicant would be proceeding to request a court date for an uncontested trial. Subsequently, on July 11 and 16, 2024, correspondence was exchanged on the issue of parenting time.

[14] On September 3, 2024, counsel for the applicant forwarded to Mr. Saha a copy of the August 15, 2024 order of Bordin J.

[15] Shortly thereafter, the respondent discharged Dolgonos LLP and retained his current counsel.

[16] The respondent deposes that his retainer of Mr. Dolgonos was limited to the negotiation of a parenting schedule and did not contemplate representation in court or acceptance of service of any court material. He states that it was incorrect for Dolgonos LLP to hold itself out as his counsel of record. He denies ever giving instructions to that firm to accept service of any claims or legal documentation on his behalf.

[17] On November 14, 2024, Ms. Sera confirmed in writing with counsel for the applicant that her firm had been retained solely to assist the respondent with matters related to parenting time and that the retainer “[did] not include handling any applications or other unrelated legal matters. Mr. Lewin has instructed us to receive only documentation directly relevant to the visitation case.”

[18] Further, on November 26, 2024, Ms. Sera corresponded with new counsel for the respondent stating in part as follows:

Our office did not send Mr. Lewin a copy of the Application. However, we informed him verbally on several occasions of its existence and the need to collect his materials from our office, as well as the importance of retaining us fully for representation in this matter. Unfortunately, despite multiple attempts to coordinate, Mr. Lewin did not follow through with the steps.… While we did not send written confirmation of the court dates, including the first appearance, Mr. Lewin was informed verbally during our phone conversations. Additionally, a text message was sent on July 11, 2024, which mistakenly stated there was no hearing, and we regret this error.

Was there proper service of the application?

[19] The respondent submits that no proper service occurred, and as a result no subsequent proceedings against the respondent are effective. On that basis, it is unnecessary to engage in a review of the Mountain View Farms criteria for setting aside a default judgment.

[20] Rule 8(5) requires special service of an application and rule 6(3) contemplates service on a party directly or alternatively as in subrule 6(3)(b) by “leaving a copy with a person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document.” Since there was no solicitor of record and no acceptance of service noted in writing, there was no valid service of the originating process. Therefore, the respondent submits that the summary judgment of August 15, 2024 was simply a nullity.

[21] Although I agree that effective service of originating documents is fundamental to a proper proceeding, I do not agree that this is a case where the irregularity in service is of significance. When a law firm indicates in writing that it is counsel of record for the proposed respondent and that it has instructions to accept service of documents, it is completely within the right of an applicant’s counsel to effect service through that law firm. Whether in this case the respondent has an issue with his former counsel as to the representations made on his behalf is a matter between them.

[22] The respondent also submitted that the applicant’s counsel was not authorized to show Dolgonos LLP as counsel on the application Form 8 and on the subsequent documents prepared and filed with the court. Had that not occurred, the court would have forwarded the notice of first appearance date and uncontested trial date to the respondent directly which presumably would have brought the matter to his attention.

[23] Once again, I agree that it is inappropriate for anyone preparing a court document to show a law firm as lawyer for the respondent where that is not the case. However, the correspondence to which I have referred that had been received by counsel for the applicant from the Dolgonos LLP firm justified its inclusion on the forms.

[24] For the foregoing reasons, I find that there was proper service of the application and subsequent materials when they were delivered to Dolgonos LLP.

Was the motion brought promptly after party learned of the default judgment?

[25] Mr. Lewin deposed that he first learned about the proceedings when he received a copy of the court order on September 9, 2024 and as noted, he attended at court two days later to secure a copy of the complete court file. His statement may not be completely accurate because the correspondence from Ms. Sera dated November 26, 2024 to Mr. Lewin’s new counsel includes a notation that the respondent was verbally advised on several occasions of the existence of the application and the need to collect his materials from the office. However, there is no evidence to show that details of the August 15, 2024 order had come to the respondent’s attention before September 9.

[26] Mr. Lewin made contact with new counsel on September 10 and had an initial interview shortly thereafter. He needed time to make retainer arrangements and formally retained Grossman Family Law on November 12, 2024. That firm gave notice immediately of the respondent’s intention to set aside the Bordin J. order. After the passage of a few weeks during which there was correspondence between counsel, the notice of motion was issued dated December 5, 2024.

[27] The requirement for prompt action under the principles set out in Mountain View Farms is in effect to demonstrate the good faith of the moving party and minimize possible prejudice to the responding party. As such, it is a fact specific inquiry in each case.

[28] I am satisfied that the respondent herein moved with reasonable promptness to bring this motion upon learning of the default judgment.

Was there a plausible excuse or explanation for the moving party’s default in complying with the rules?

[29] The respondent has alleged what is in effect miscommunication with his previous counsel both as to the scope of the retainer and as to counsel’s management of information about the application. A copy of the Form 8 and supporting materials should have been provided to him by his counsel without delay. Although the respondent denies any knowledge of the application, the correspondence from Ms. Sera dated November 26 calls that assertion into question. However, as between them, only Mr. Lewin’s statement as to his lack of knowledge is under oath.

[30] I am satisfied that the circumstances described by the respondent in his affidavit represent a plausible excuse or explanation for his having failed to file responding material and ultimately take a position at the uncontested trial.

Did the moving party set out facts that support the conclusion that there is at least an arguable defence on the merits?

[31] In the materials filed on this motion, there was little emphasis on the respondent’s intended response of the claim. However, the issue of parenting time was clearly contentious as is demonstrated by the correspondence from his counsel both prior and subsequent to the application being issued. Likewise, the respondent deposes that he does not make $100,000 per year as was imputed to him at the uncontested trial and he refers to his involvement in childcare for his daughter, disputing that the sole decision-making should be accorded to the applicant.

[32] The facts alleged in family law cases are rarely black-and-white, and it is correspondingly simple to conclude that there is at least an arguable response on the merits.

[33] I conclude that the respondent has satisfied his onus on this aspect of the Mountain View Farms factors.

What is the comparative potential prejudice to the parties?

[34] The respondent alleges that he is prejudiced by the default judgment in his current and future involvement with his daughter in terms of parenting time, decision-making responsibilities, quantum of support, restrictions on travel and his lack of entitlement to knowledge of the child’s whereabouts.

[35] The order requiring supervised parenting time is not typically required on a permanent or long-term basis without significant evidence to justify that result. In this case, the respondent is prejudiced by his inability to see his child without supervision and without having an opportunity to oppose the imposition of such a provision.

[36] The order provides that parenting time is to be exercised in a reasonable amount and on reasonable notice both of which are within the discretion of the applicant. There is prejudice to the respondent in his inability to have put forward reasonable alternative proposals including the potential for a parenting time schedule.

[37] The endorsement of Bordin J. indicates a negative inference being drawn from the respondent’s failure to produce financial disclosure, leading to the imputation of $100,000 per year income.

[38] A costs order was made in the amount of $5,969.79. The Bordin J. endorsement indicates that the applicant submitted her entitlement to costs as a result of her having brought an application which was not answered and without financial disclosure and that the respondent had not been negotiating in good faith. I consider it to be prejudicial to the respondent that he was not able to at least make submissions as to costs.

[39] The prejudice that may befall the applicant if the order is granted setting aside the default judgment is primarily as to costs. She obviously incurred costs in pursuing the application to and through the defence of this motion. To the extent that the respondent is allowed to file responding material, further proceedings will be necessary and many of the costs incurred other than the preparation and filing of the initial application materials will have been wasted.

[40] Since the terms of the default judgment were imposed pursuant to the request of the applicant, it is difficult to see that she is been prejudiced by the outcome to date.

[41] Although it is arguable that prejudice will occur if the default judgment is set aside because the applicant must maintain and defend her position as to the issues in the application, she would have had to bear that obligation in any event if the matter had proceeded in the regular course.

[42] In the circumstances of this case, I am satisfied that prejudice to the respondent if the default judgment is maintained significantly outweighs the prejudice to the applicant if it is set aside.

What is the effect of any order the court might make on the overall integrity of the administration of justice?

[43] In my view, the primary objective of the rules enabling the court to deal with cases justly, ensuring fair procedure to all parties, and also considering the saving of time and expenses and dealing with matters proportionately supports the other factors that I have reviewed in justifying the setting aside of the default judgment. The proper administration of justice is best served by dealing with cases on the merits where possible. As a matter of fairness, that requires input from both parties so that the court can properly consider the issues before it.

[44] In this case, while there may be some adjustment in the status quo by virtue of setting aside the default judgment and permitting a response to the application, those adjustments by definition will be consistent with the administration of justice. Saving time and expense cannot be justifications for excluding one party from participation in litigation: that would be the antithesis of administering justice with integrity. To the extent that it would be unfair to require the applicant to bear costs thrown away, that matter can be addressed in costs submissions.

Conclusion

[45] For success in a motion to set aside a default judgment, it is not necessary that the moving party satisfy each factor identified in Mountain View Farms. However, in this case, the applicant has done so.

[46] Rule 25, clause (19)(e) applies in this case, since the respondent has explained why he was unable to be present at the hearing.

[47] It is in the interest of justice that both parents in a family dispute are allowed to present their positions to the court, in keeping with the legislative mandate to make a decision consistent with the best interest of children.

[48] Therefore there will be an order:

a. Setting aside the order of Bordin J. dated August 15, 2024;
b. Permitting the respondent to file his answer, 35.1 affidavit and financial statement within 30 days of this decision; and
c. Requiring the parties to schedule a case conference to be heard following the respondent’s filings.

Costs

[49] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:

• The respondent is to serve his Bill of Costs and submissions by January 30, 2025;
• The applicant is to serve her Bill of Costs and submissions by February 6, 2025;
• The respondent is to serve his reply submissions, if any, by February 13, 2025;
• All submissions are to be filed with the court with a copy to St.Catharines.SCJJA@ontario.ca and uploaded to Case Center by February 18, 2025.

If no submissions are received by the court by February 18, 2025, or any agreed extension, the matter of costs will be deemed to have been settled.

Reid J.
Date: January 23, 2025