Court File and Parties

Court File No.: CV-25-00002478-0000 Date: 2025-08-28 Superior Court of Justice – Ontario

Re: Alexander Babinets, Plaintiff And: Lyubov Babinets, Defendant

Before: Justice R. E. Charney

Counsel: Alexander Babinets, Self-Represented

Heard: In Writing – Ex Parte

Endorsement

[1] This is a motion for default judgment.

[2] The Plaintiff alleges that the Defendant was personally served with the Statement of Claim on July 14, 2025 and served a Notice of Intent to Defend on July 31, 2025. No Statement of Defence has been filed, although it does not appear that the Defendant has been noted in default under Rule 19.01.

[3] The Plaintiff has not included the Statement of Claim in his motion for default judgment. His Notice of Motion states that his claim is for general damages of $250,000 and "compensatory/ongoing support" in the amount of $1,700 per month. He also seeks "injunctive relief restraining further enforcement/collection related to discharge obligations".

[4] The Plaintiff also refers to an earlier decision by Justice MacPherson, dated March 30, 2020, related to family proceedings. In that decision, Justice MacPherson made several orders against the Plaintiff (he was the Respondent in the family proceedings), including the obligation to transfer $160,000 back into the parties' joint bank account. The Applicant in the family proceedings is the Defendant in the current action.

[5] The current action appears to be directly related to the family law proceedings. The Plaintiff's affidavit in support of this motion for default judgment alleges that the Defendant has "engaged in a sustained pattern of emotional abuse, psychological manipulation, and financial exploitation over many years…she leveraged the legal system to inflict financial harm, including obtaining unrealistic spousal support orders and attempting to collect debts discharged in bankruptcy". The Plaintiff also seeks "an injunction restraining further abusive litigation and collection activities".

[6] The present motion for default judgment was not served on the Defendant. The Courts have confirmed that the best practice in default proceedings is for the plaintiff to serve its motion record on the defendant: Madison Homes v. Ng, 2021 ONSC 3104, and cases cited therein.

[7] In Casa Manila v. Iannuccilli, 2018 ONSC 7083, Sanfilippo J. stated the following at para 11:

In Elekta Ltd. v. Rodkin, 2012 ONSC 2062 at para. 10, D.M. Brown J., as he then was, directed a plaintiff to provide notice to a defaulting defendant, under Rule 19.02(3), on the basis that this allows the judge hearing the undefended trial, or motion for judgment, to be satisfied that the defaulting defendant was provided with proper notice of the claim and of the motion or hearing pending for judgment:

Although once noted in default a party is not entitled to notice of a motion for default judgment, by far the better practice is to serve the default judgment motion materials on the defendant in any event. The main reason for this practice is a simple, but important, one. Often the materials filed on a Rule 19.05 motion for default judgment will raise questions about the adequacy of the service of the Statement of Claim. … . Even where the Registrar has noted a defendant in default, a judge will want to satisfy himself or herself that the defendant was given proper notice of the claim. By serving the default judgment motion record on the responding party and filing proof of such service, a court can satisfy itself that the person against whom default judgment is sought knew about the claim, knew about the motion for default judgment yet, nevertheless, elected not to defend or respond.

[8] In the present case, the Defendant has filed a Notice of Intent to Defend and is represented by counsel. The Plaintiff's motion for default judgment was brought just one day after the deadline for filing the Statement of Defence, and without any notice to the Defendant. In these circumstances I will not consider a motion for default judgment unless the Defendant has been given notice of the motion and an opportunity to appear or respond.

[9] Moreover, Rule 19.06 provides:

A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[10] In the present case, I have not been provided with the Statement of Claim, so I do not know whether the facts alleged in the Statement of Claim entitle the Plaintiff to judgment.

[11] Indeed, given the little I can glean from the Plaintiff's affidavit, there is a real question whether the Plaintiff has pled a valid cause of action and whether the present action constitutes an impermissible collateral attack on earlier family court decisions.

[12] Accordingly, the Plaintiff's motion for default judgment is dismissed, without prejudice to his bringing the motion back on notice to the Defendant. If the motion is brought on notice, the Plaintiff's motion record must include the Statement of Claim. This motion may not proceed as a motion in writing, but must be scheduled as a regular motion to be heard virtually. I am not seized.

Justice R. E. Charney

Date: August 28, 2025