Complying with the rules of court procedure is very important in family law matters. Failure to do so may result in adverse findings, decisions and costs orders. Having an experienced family lawyer on your side can help you meet the requirements and deadlines.

This article looks at the recent decision of the Ontario Superior Court of Justice in Tariq v Rehman. In this case, the mother commenced an application and obtained the relief she sought in an undefended trial. The father sought to have the order set aside, claiming that he did not know about the trial as the notification went to his junk/spam email folder.

Mother sought sole decision-making responsibility, child support and property equalization

The parties married in 2010. In July 2020, they moved from Toronto to Pakistan. They separated the following month, with the mother and their 8 and 6-year-old children returning to Toronto shortly thereafter.

The father obtained a divorce order in Pakistan, and the mother brought an application in Ontario seeking sole decision-making responsibility, the right to travel with the children and apply for the children’s passports and other government documents without the father’s consent, an order preventing the father from removing the children from Canada, child support and property equalization.

Mother obtained order after father did not appear at trial

The father was personally served with the mother’s application, and their lawyers corresponded for a period of time. During this period, the mother offered parenting time if the father agreed to hire and pay for a third-party facilitator. The mother’s lawyer sought a share of the income from a rental property and child support, noting that the mother was left to support the children without his help since the separation.

The father did not file a response to the mother’s application. The mother’s lawyer requested this, along with relevant financial disclosure, “so that the issues of equalization can be addressed immediately given the children’s … financial hardship”.

Later, the father’s lawyer advised that he was no longer acting for the father. The mother’s lawyer served the father with the mother’s case conference brief by email. The father did not attend the case conference, where the judge made temporary orders in the mother’s favour. These were emailed to the father by the court and again by the mother’s lawyer.

The mother served her trial materials on the father, and an undefended trial proceeded. The judge granted the orders sought by the mother, including sole decision-making responsibility, child support and equalization.

Father unsuccessfully sought to set aside the order

The father brought a motion to set aside the order made at the undefended trial, arguing that he was not aware the mother was proceeding to an uncontested trial.

Under the Family Law Rules, the court may change an order in certain circumstances, such as where the order was made without notice or was made with notice, but a party was not present because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

Justice Horkins applied the test for deciding whether to set aside a default judgment, which involves examining five factors:

  • whether the motion was brought promptly after learning of the default judgment;
  • whether there is a plausible excuse or explanation for the default in complying with the Family Law Rules;
  • whether the facts establish that the defendant has an arguable defence on the merits;
  • the potential prejudice to the parties from dismissing or allowing the motion; and
  • the effect of any order the court might make on the overall integrity of the administration of justice.

Father’s delay in bringing the motion was concerning

Justice Horkins criticized the father’s evidence, stating that it was false that he did not receive any notice of the court proceedings because he was personally served with the application. Her Honour explained that there was a 1.5-month delay between when the father said he found the court order in his junk email folder and when he filed the motion to set aside the order, which was “concerning”.

Failure to check junk mail was not an acceptable excuse

Her Honour found the father’s explanation for not responding to the mother’s application “not plausible”. Justice Horkins said:

He says that he was “completely unaware” that the mother was proceeding to an uncontested trial … The father received [the temporary orders] by email. While he says that it went into his junk/spam email, this is not an excuse. It is his obligation to regularly check his spam or junk folder, and there is no evidence that he ever did so.

The evidence showed that the father was fully aware of the mother’s application. For example, he was repeatedly asked to file a response and comply with his disclosure obligations through communications between the lawyers. Although he said that he expected that he would be personally served with court documents, service of an order by email is permitted under the Family Law Rules.

Father had not shown an arguable claim

Justice Horkins held that the father did not have an arguable defence on the merits, with the equalization and child support orders based on clear evidence. The issue of the father’s parenting time was not addressed at trial, but the parties were in negotiations.

Prejudice to mother and administration of justice supported dismissing father’s motion

Her Honour said that any prejudice to the father was a direct result of his own failure to provide disclosure and participate in the process. The prejudice to the mother supported dismissing the father’s motion as she had spent significant time and money to comply with her obligations in the proceeding. Finally, maintaining the integrity of the administration of justice was also a factor favouring the mother, given “the most basic obligations in family law are the duties to make prompt and complete financial disclosure and to comply with court orders”.

Justice Horkins dismissed the father’s motion to set aside the order but granted him leave to seek parenting time if the parties could not agree on this issue.

Contact NULaw in Toronto for Sound Legal Advice on Your Family Law Issue

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short-term plan is to contact an experienced family lawyer immediately to understand your options and to formulate a strategy for moving forward. Contact NULaw online or at 416-481-5604 to book a consultation.

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