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«Page 1 Case Name: M v. M Between M. M., Applicant/Responding Party, and V. M., Respondent/Moving Party [2012] O.J. No. 5203 2012 ONSC 6271 Court File ...»

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Page 1

Case Name:

M v. M


M. M., Applicant/Responding Party, and

V. M., Respondent/Moving Party

[2012] O.J. No. 5203

2012 ONSC 6271

Court File No. 34723/12

Ontario Superior Court of Justice

D.K. Gray J.

Heard: October 31, 2012.

Judgment: November 5, 2012.

(69 paras.)

Family law -- Custody and access -- Practice and procedure -- Orders -- Motion by husband to set aside order dismissed -- Order related to custody, access and child support was made at uncontested trial after husband failed to respond to wife's application -- Family Law Rules did not authorize court to set aside order, Rule 19.08 of Rules of Civil Procedure could not be applied and there was no manifest injustice.

Family law -- Maintenance and support -- Child support -- Practice and procedure -- Orders

-- Motion by husband to set aside order dismissed -- Order related to custody, access and child support was made at uncontested trial after husband failed to respond to wife's application -- Family Law Rules did not authorize court to set aside order, Rule 19.08 of Rules of Civil Procedure could not be applied and there was no manifest injustice.

Motion by the husband to set aside an order. The wife served the husband with an application after he ignored her attempts to address matters related to custody, access and child support in accordance with their separation agreement. The order was made at an uncontested trial after the husband failed to respond to the application.

Page 2 HELD: Motion dismissed. The Family Law Rules did not authorize the court to set aside the order. Rule 19.08 of the Rules of Civil Procedure could not be applied by analogy.

There was no manifest injustice. The husband had notice of the proceedings, but chose not to participate. There was a need to change the custody and access arrangements once the children started school, given the length of the commute from his residence. He had every opportunity to provide financial information that might have affected his imputed income.

Statutes, Regulations and Rules Cited:

Child Support Guidelines, Family Law Rules, Rule 1(7), Rule 10(5), Rule 25(19) Rules of Civil Procedure, Rule 19.08


Steven Benmor, for the Applicant/Responding Party.

Olena Brusentsova, for the Respondent/Moving Party.


1 D.K. GRAY J.:-- The respondent moves to set aside an order of Justice Donohue made at an uncontested trial, and for an order granting him leave to now file an answer and financial statement.

2 For the reasons that follow, the motion is dismissed.

Background 3 Ordinarily, the Court is reluctant to deprive a party of an opportunity to have his or her rights determined at a trial. In view of the result I have reached on this motion, it is necessary to set out the background to the matter in some detail.

4 This application was commenced on May 22, 2012. However, long before the commencement of the application, a number of events occurred that are relevant to the disposition of this motion.

5 The parties are parents of twin boys, now six years old. They were born on October XX 2006.

6 The parties were married on November 25, 2000. They separated on January 1, 2009.

7 The parties executed a separation agreement on May 24, 2009. At that time, the children were two years old and in daycare. The parties did not have independent legal advice when they signed the agreement, but they each agreed that they had had the opportunity of obtaining independent legal counsel. They also agreed that they had read and Page 3 understood the agreement, and they agreed that they signed the agreement without any pressure, influence, or intimidation.

8 In the agreement, the parties acknowledged that it constituted a final settlement of their respective rights to property; that their assets and liabilities were accurately and completely described; and that it constituted a final settlement of custody, access, guardianship and support.

9 The parties agreed that they would have joint custody of the children, and that the applicant would have primary residence of the children. The parties agreed to an access schedule, which rotated every week so that, in effect, the children spent equal time with each parent.

10 In a "personal statement" at the end of the agreement, the applicant acknowledged that from the birth of the children until October 8, 2007, both parties shared equally in providing care to the children. At the conclusion of the applicant's maternity leave, the applicant assumed and carried out the responsibility of primary caregiver until May 31, 2009.

She acknowledged that the respondent's continued role and involvement in the joint custody and upbringing of the children is not diminished by his absence from the children's primary place of residence.

11 The parties agreed to a dispute resolution of issues involving parenting, as follows:

If M. and V. are unable to resolve a parenting issue, they will mediate/arbitrate the issue with a person they agree upon. If they cannot agree upon a person, they will each name one person and the two named persons will select a mediator/arbitrator.

12 It was agreed that, in accordance with the Child Support Guidelines, the respondent would pay child support in the sum of $400 per month. It was agreed that no special expenses would be paid.

13 It was also agreed that each party would provide the other with a complete copy of his or her income tax return and any notice of assessment on or before June 30th of each year. In the event that a party had not filed an income tax return for the previous year, that party was to provide the other with copies of his or her T4, T4A and all other relevant tax slips and statements disclosing any and all sources of income, including self-employment income.

14 It was agreed that neither party would pay spousal support.

15 The agreement contains some rather detailed provisions regarding division of the parties' assets and liabilities. It was agreed that there would be no equalization payment required. Among other things, the respondent agreed to accept sole and exclusive liability for an unsecured line of credit at the CIBC.

16 The circumstances leading up to the application commenced by the applicant, and ultimately the undefended trial, are set out in detail, and not contradicted by the respondent, in an affidavit sworn by the applicant on October 26, 2012. Rather than paraphrase, I

will simply set out the relevant parts of her affidavit, without exhibits, as follows:

Page 4

13. When the Separation Agreement was executed, the children were 2 years old and in daycare.

14. The access schedule at that time was based on the children not being in school.

15. This changed in September 2010, when the children began school.

16. When the children began school, I communicated the need to change the access schedule to the Respondent.

17. He ignored me.

18. I reminded the Respondent that, according to the Separation Agreement, the access schedule was supposed to be reviewed each year and, if we could not agree to a new schedule, that we were to retain a mediator/arbitrator.

19. The Respondent still ignored me.

20. The access schedule in the Separation Agreement had the children with the Respondent from Sunday at 6:00 p.m. to Tuesday morning (drop-off at school) and then again from school on Friday. The exact schedule is in the back of the Separation Agreement where there are a few monthly calendars.

21. The reason that the access schedule became a serious problem was because the children were moved 3 times during every school week between our homes. That is, they were with the Respondent in Toronto. When school started on Monday morning, he would drive them to Milton on Monday morning during rush hour, then to be picked up by him in Milton after school on Monday and then driven to his home in Toronto during rush hour on Monday afternoon. The same would occur on Tuesday morning.

22. The children were spending over 2 hours in the car on Monday to get to and from school and then again another hour Tuesday morning to get to school.

23. By Tuesday afternoon, the children were visibly exhausted after 2 days of commuting this distance.

24. By Friday after school, they would have spent 1 1/2 days with the Respondent, the 3 days with me and then back with the Respondent at the end of school on Friday.

25. I had tried to explain this problem to the Respondent. He simply would not listen. He completely ignored me and the children's needs.

26. One year ago, on November 22, 2011, I contacted the Respondent and asked him to join me in meeting with a parenting mediator to help us develop a more suitable plan.

27. I spoke with the mediator's office and then asked the Respondent to contact her.

28. I continued to follow up with him daily until January 25, 2012 with no success.

29. The Respondent refused to cooperate.

30. I then retained Mr. Benmor in March 2012.

Page 5

31. By letter from Mr. Benmor to the Respondent dated March 12, 2012,

Mr. Benmor stated:

"Please be advised that I have been retained by Ms. M.M. in regard to issues stemming from your Separation Agreement dated January 1, 2009.

I have reviewed the terms of your Separation Agreement with Ms.

M. There are 3 categories that must be addressed.


The parenting terms of the Separation Agreement must be amended to reflect the best interests of the children. When the Separation Agreement was executed, the children were 2 years old and were in daycare. However, at the present time, the children are 5 1/2 years old and are in kindergarten at E. V. P. School in Milton which is located near my client's residence. The existing parenting schedule must be changed to reduce the amount of time that the children spend in transportation during the school week. In this regard, my client will agree to share in the cost of a parenting mediator to revise the children's parenting schedule and to create a more child-centric plan. As you know, the Separation Agreement requires that you resolve any such dispute in Mediation/Arbitration so that

the schedule may be corrected:

–  –  –

Please Confirm by email or fax on or before March 19, 2012 that you agree to proceed with the Mediation/Arbitration to resolve the parenting plan and also advise which candidate you select. In the event that we do not secure your agreement in this regard, we shall proceed with a court Application to resolve this matter. This letter will then be presented to the court to demonstrate that we made efforts to resolve this matter and that you did not cooperate.

–  –  –

35. Attached hereto and marked as Exhibit "D" is a true copy of this email.

36. On the same day as the Respondent's email, Mr. Benmor responded with an email to him that stated:

–  –  –

37. Attached hereto and marked as Exhibit "E" is a true copy of this email.

38. The Respondent did not reply.

39. Then, on March 20, 2012, Mr. Benmor sent the Respondent another

email that stated:

–  –  –

If I do not have your agreement and reply by noon tomorrow, we shall be issuing an Application in the Superior Court of Justice.

40. Attached hereto and marked as Exhibit "F" is a true copy of this email.

41. The next day, the Respondent replied with an email to Mr. Benmor

that stated:

–  –  –

With all due respect, I feel that you do not have all of the necessary and relevant facts with regard to the separation agreement and the circumstances surround it as present to you by our client.

When I informed you that I am seeking legal counsel, I did indeed set an appointment with an individual for Tuesday, March

27. That was the earliest date available but if an opening presents itself sooner, I was told that I would be informed of that opportunity.

As I have indicated to your client, I am in the process of paying off and will pay off the CIBC Line of Credit. I have not made any representation to the contrary.

As to the parenting schedule, once I have spoken with my counsel and know how best to proceed, then I will certain address all pertinent issues including any counter-claims should that be necessary.

Please note: The separation agreement also does not mention any "expiry" dates or clauses for any reconsideration of the parenting schedule in favour of either parent.

–  –  –






18 The 30 days required to respond to the application expired on June 24, 2012. The respondent filed no response, and did not communicate with the applicant or the applicant's counsel.

19 In Milton, where a matter is undefended and an undefended trial is sought, the normal practice is that a Form 14B motion is filed, requesting that it be determined in chambers by a judge without the attendance of the parties or counsel. If the judge thinks the affidavit material is sufficient, the judge may determine the matter in chambers without any attendance. If the judge thinks the matter ought to be heard after an oral attendance, the judge may so direct.

20 In this case, counsel for the applicant filed a Form 14B motion dated July 9, 2012, supported by an affidavit for an uncontested trial sworn on July 9, 2012.

21 On July 19, 2012, Miller J. ordered that the matter be heard at an oral hearing before a judge as an uncontested trial.

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