



COURT OF APPEAL FOR ONTARIO

CITATION: Gray v. Gray, 2017 ONCA 100

DATE: 20170208

DOCKET: M47093 (C62304)

Doherty, MacPherson and Lauwers JJ.A.

BETWEEN

Gail Mary Gray

Applicant (Respondent)

and

Mike Kostas Gray

Respondent (Appellant)

Michael H. Tweyman, for the applicant

Andrew Feldstein, for the respondent

Cindy Boyd, for the Regional Municipality of Durham

Heard: December 8, 2016

On appeal from the order of Justice Peter Z. Magda of the
    Superior Court of Justice, dated May 25, 2016.

MacPherson J.A.:

A.

introduction

[1]

The respondent mother brings a motion to quash the appellant fathers
    appeal for jurisdictional reasons.

[2]

The father seeks to appeal the trial judges order made in his absence
    at the Superior Court of Justice, Family Court Branch (Family Court). The
    mother claims that the father must first bring a motion to set aside the trial
    judges order in the Family Court, before he can appeal to this court.

[3]

There are two main issues on this motion:

1.       Does a trial court have
    jurisdiction to set aside an      order under r. 25(19)(e) of the
Family
    Law Rules
,          O. Reg. 114/99?

2.       What is the proper procedural
    route in this case:  (i) an appeal from the trial decision to this court or        (ii)
    a motion to set aside the trial decision in the       Family Court?

B.

FACTS

(1)

The parties and events

[4]

The parties married in 1997 and separated in 2005. They have three
    children.

[5]

In 2006, Rowsell J. of the Family Court ordered on consent that the
    father pay child and spousal support of $700 and $1,200 respectively,
    commencing in 2007.

[6]

In early 2014, the father started a variation application, seeking to
    reduce his child support obligation, to cease paying spousal support, and to rescind
    all his support arrears that accumulated under Rowsell J.s order.

[7]

In response, the mother sought to fix support arrears at $108,960 for
    the period of 2007 to 2012. She consented to terminate spousal support
    effective December 2012.

[8]

The parties attended a trial management conference on May 13, 2016.
    Pursuant to the trial scheduling endorsement, all exhibits were to be served as
    soon as possible, the opening statements would be oral, and the parties could
    file late expert reports. Any admissibility issues would be determined by the
    trial judge. The trial was scheduled for May 25, 2016.

(2)

The trial judgment

[9]

The father did not attend at trial. A friend appeared to explain his
    absence to the trial judge. The friend stated that the father has multiple
    sclerosis, which makes it very difficult for him to find work in construction.
    She explained that the father learned on the eve of trial that he had secured
    employment, and could not attend court because it was his first day of work.

[10]

The trial judge decided that the fathers employment did not excuse his
    absence, and proceeded without him. According to the transcript, the trial
    judge stated, [s]o the evidence Im prepared to hear, very simply, is,
    essentially, on default. The trial judge instructed the mothers lawyer to
    call the mother as a witness to adopt the contents of her opening statement.
    The mother did so. The trial judge accepted the contents of her opening
    statement and the fathers income assessment in her expert report. He endorsed
    as follows: On the evidence which I accept as exhibits 1 and 2 at trial [the
    mothers opening statement and expert report] an order is to go pursuant to the
    draft order as amended and signed this date.

[11]

The trial judges order fixed child support arrears at $191,924 for the
    years 2007 to 2015. The trial judge also ordered the father to pay ongoing
    monthly child support for the children in the amount of $2,159 based on an
    average annual income of $120,000.

(3)

Subsequent events

[12]

In June 2016, the father commenced his appeal from the trial judges
    order at this court. Among other things, the father claims that the trial judge
    erred by failing to provide him with an opportunity to attend the trial,
    failing to provide sufficient reasons, permitting the mother to submit her
    expert report four days prior to the trial, and permitting the mother to submit
    as evidence her opening statement, which was not served on him prior to trial.

[13]

In July 2016, the father also commenced a motion in the Family Court to
    set aside or change the trial judges order pursuant to r. 25(19)(e) of the
Family
    Law Rules
. For various reasons, this motion has been adjourned on multiple
    occasions and has not yet been heard.

[14]

The mother has now brought a motion to quash the fathers appeal at this
    court. The mother submits that the trial judges order is akin to a default
    judgment, and therefore the proper procedural route is the motion to set aside
    in the Family Court. If the motion is unsuccessful, the father may then try to
    appeal to this court.

[15]

The father has perfected his appeal and it is scheduled to be heard on
    February 27, 2017. The mother has not yet provided responding material because
    she is waiting for a decision on this motion to quash.

C.

THE RELEVANT LEGISLATION

[16]

Rule 25(19) of the
Family Law Rules
provides:

The court may, on motion,
change
an order that,

(a)

was obtained by fraud;

(b)

contains a mistake;

(c)

needs to be changed to deal
    with a matter that was before the court but that it did not decide;

(d)

was made without notice; or

(e)

was made with notice, if an
    affected party was not present when the order was made because the notice was
    inadequate or the party was unable, for a reason satisfactory to the court, to
    be present. [Emphasis added.]

[17]

I observe that r. 25(19) was added to the
Family Law Rules
in
    2008. Prior to this, there was a substantially similar provision under r.
    15(14).

[18]

Rule 2(1) of the
Family Law Rules
defines change as follows:
    change, when used to refer to an order or agreement, means to vary, suspend
    or discharge, or a variation, suspension or discharge.

[19]

Rule 1(7) of the
Family Law Rules
states:

If these rules do not cover a
    matter adequately, the court may give directions, and the practice shall be
    decided by analogy to these rules, by reference to the
Courts of Justice
    Act
and the Act governing the case and, if the court considers it
    appropriate, by reference to the
Rules of Civil Procedure
.

D.

analysis

(1)

Does a trial court have jurisdiction to set aside an order under rule
    25(19)(e)?

(a)

Conflicting jurisprudence

[20]

As cited above, r. 25(19) explicitly states that a court may change an
    order. Neither r. 25(19) nor the definition of change in r. 2(1) refers to
    setting aside an order. This wording has led to conflicting jurisprudence from
    lower Ontario courts on the issue of whether or not r. 25(19) authorizes a
    court to set aside an order.

[21]

On the one hand, there is a line of authority that broadly interprets
    the term change in r. 25(19) to include set aside: see e.g.
Boers v.
    Boers
, 2010 ONSC 1264 (S.C.);
Gotkowski v. Gotkowski
, 2012 ONSC
    5579 (S.C.); and
Chambers v. Johnson
, [2002] O.J. No. 1649 (S.C.).

[22]

On the other hand, there is an opposing line of authority for the
    proposition that the court does not have jurisdiction to set aside an order under
    r. 25(19); it only has jurisdiction to change an order for the stated reasons.
    One of the leading cases in this regard is
Diciaula v. Mastrogiacomo
(2006),
    27 R.F.L. (6th) 49, where the Ontario Divisional Court reasoned that the Family
    Rules Committee intentionally omitted the words set aside. For other examples,
    see
Boivin v. Smith
, 2010 ONCJ 411, 92 R.F.L. (6th) 432;
Einstoss
    v. Starkman
, 2010 ONSC 4126; 87 R.F.L. (6th) 346 (S.C.);
Farhan v.
    Farhan
, 2012 ONSC 6596 (S.C.); and
Ontario (Director of Family
    Responsibility) v. Dick
, 2013 ONCJ 198, 29 R.F.L. (7th) 500.

[23]

Within this second line of authority, courts have adopted two main
    approaches to address motions to set aside in the family law context.

[24]

First, some courts have relied on their inherent jurisdiction to set
    aside an order to prevent a miscarriage of justice: see
West v. West
(2001), 18 R.F.L. (5th) 440 (Ont. S.C.).

[25]

Second, other courts have imported r. 19.08 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194
through r. 1(7) of the
Family Law Rules
. For example, in
Gray v.
    Rizzi
, 2010 ONSC 2858 (S.C.), affd 2011 ONCA 436, the respondent father
    never filed an Answer and the court made orders regarding child and spousal
    support. The father then sought to set aside the orders under r. 25(19). While
    dismissing the fathers motion to set aside, Boswell J. considered r. 1(7) of
    the
Family Law Rules
and r. 19.08 of the
Rules of Civil Procedure
.
    In a short endorsement, this court upheld Boswell J.s decision to dismiss the
    fathers motion, but the applicability of r. 19.08 was not at issue on appeal. For
    other examples of this approach, see
McDonald v. McDonald
, 2015 ONSC
    2605, 61 R.F.L. (7th) 357 (S.C.);
Pascal v. Mostafev
, 2015 ONCJ 639;
Lemieux
    v. Lehane
, 2014 ONSC 4462, 47 R.F.L. (7th) 215 (S.C.);
P.M. v. S.M.
,
    2014 ONCJ 496; and
Page-Cole v. Cole
, [2009] O.J. No. 4386 (S.C.).

(b)

A court can set aside an order under rule 25(19)(e)

[26]

In my opinion, r. 25(19)(e) includes the authority to set aside an
    order. I say this for three main reasons.

[27]

First, the definition of change in the
Family Law Rules
is
    quite broad. It means to vary, suspend or discharge. As an example of the
    wide scope of these terms, the definition of discharge in
Merriam-Websters
    Collegiate Dictionary
includes to set aside: annul: 11th ed.
    (Springfield, MA: Merriam-Webster Inc., 2003), at p. 356.

[28]

Second, a broad interpretation of r. 25(19) as including the authority
    to set aside an order is consistent with prior comments from this court. In
Ketelaars
    v. Ketelaars
, 2011 ONCA 349, 2 R.F.L. (7th) 296, this court considered an
    appeal from a judgment following an uncontested trial. The appellants
    pleadings had been struck for failure to comply with various disclosure
    obligations. The respondent brought a motion to quash the appeal for
    jurisdictional reasons. This court quashed the appeal, stating at para. 5 that
    [t]here are procedures available in the Superior Court to change, vary or
set aside
 such an order (emphasis added).

[29]

Finally, and most importantly, this interpretation of r. 25(19)(e)
    promotes the underlying philosophy, scheme, and purpose of the
Family Law
    Rules
. As Benotto J.A. stated in
Frick v. Frick
, 2016 ONCA 799, 132
    O.R. (3d) 321, at para. 11:

The
Family Law Rules
were enacted to reflect the fact
    that litigation in family law matters is different from civil litigation. The
    family rules provide for active judicial case management, early, complete and
    ongoing financial disclosure, and an emphasis on resolution, mediation and ways
    to save time and expense in proportion to the complexity of the issues. They
    embody a philosophy peculiar to a lawsuit that involves a family.

[30]

Rule 2(2) states that the primary objective of these rules is to enable
    the court to deal with cases justly. While r. 1(7) permits a court to refer by
    analogy to the
Rules of Civil Procedure
where the family rules do not
    adequately cover a matter, such instances will be rare:
Frick
, at para.
    12. The
Family Law Rules
are intended to be a complete procedural
    code.

[31]

An interpretation of change as including set aside best promotes the
    efficient and just resolution of family law matters. On a motion under r.
    25(19)(e), the court may decide that the most efficient remedy is to vary the
    order at issue without setting it aside. However, the court may instead
    determine that the order needs be set aside entirely; a variation of the order
    at issue would not produce a just result. For example, a new hearing on the
    merits may be required.

[32]

There is no need to further consider the provisions and language from
    the
Rules of Civil Procedure
in this case, such as whether the trial
    judges order is analogous to a default order. An analysis of such terms
    would only confuse the scheme and narrative that are unique to family law
    litigation. Rule 25(19)(e) adequately covers the matter in this case.

(2)

What is the proper procedural route in this case?

[33]

In my view, the proper procedural route in this case was to bring a motion under r. 25(19) of the Family Law Rules rather than to appeal to this court.  While this court retains jurisdiction to hear any appeal of a final order, r. 25(19) provides a more effective way to correct orders within its ambit
.

E.

disposition

[34]

I would accordingly dismiss the motion to quash but order the appeal
    scheduling unit to de-list the matter until the fathers motion to set aside
    has been decided in the Family Court.  If the fathers motion to set aside is
    dismissed, he may appeal to this court filing an amended Notice of Appeal.

[35]

The mother is entitled to her costs of this motion fixed at $1,000
    inclusive of disbursements and HST.

Released: DD  FEB 8 2017

J.C. MacPherson
    J.A.

I agree. Doherty
    J.A.

I agree. P. Lauwers
    J.A.


