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In the modern world of digital communication, it’s not terribly uncommon for people to fail to reply to an email. For many, the reason for not replying is simple: they may not have seen it come through, or it may have landed in their spam folder. These reasons might be used as harmless white lies if the topic of an email is dinner plans with friends or a sales pitch from a business. However, as was seen in a recent decision from the Ontario Superior Court of Justice, it’s no excuse when it comes to communications involving family law matters such as child support or decision-making responsibilities for children.
Father fails to respond to action
The parents were married in 2010. Ten years after their marriage, they moved from Toronto to Pakistan. They separated shortly thereafter, and the mother returned to Toronto with their children.
The decision revolved around the father’s request for a final order to be set aside. The order was put in place after he failed to appear at a trial or file a response to the mother’s action. The order pertained to the two children he shared with the mother. The order gave the mother sole-decision-making responsibilities and the right to travel with the children without the father’s consent. The father was also ordered to pay $3,079 per month in child support based on his imputed income of $233,521 per year. In addition, there were also orders related to the equalization of family property, including a rental home they own outside of Toronto.
The father received personal service of court documents while abroad
Despite living in Pakistan, the father was served in person with the mother’s application. Despite having been served, the father did not file an answer. The application with which he was served warned the father that if he did not file an answer within 30 days, the case would go without him.
While the father did not file an answer, he maintained communication and negotiated with the mother in the weeks following the scheduled trial. Those conversations concluded when the mother underscored the father’s lack of financial support up until May 2021. He had also failed to serve any responding materials. By the Fall of 2021, the father’s lawyer informed the mother he was no longer representing the father.
Case conference and trial proceeds without the father
On October 1, 2021, a case conference was held without the father’s attendance and without him having filed anything with the court. A temporary order was issued, and a trial was scheduled for January 2022. The court emailed information relating to the temporary order as well as the date for the new trial. The father was served with new material by the mother on January 12, 2022, and a trial was held on January 24.
The father told the court that he was not aware of the trial until January 26, 2022 (two days after it had concluded). He said he was told by a mutual friend that an investment property jointly owned by him and the wife now belonged solely to the wife. The father said he was surprised by this because he “had not received any notice of any court proceedings.”
The court did not have much sympathy for the father, stating that his claim to having not received notice of any court proceedings was simply “false.” The court reminded him that even if he hadn’t received anything via email, he was personally served with the mother’s application.
The father told the court that the court order and other documents were eventually found by him in the spam folder of his email account. He said he found the email on January 26, 2022, but it wasn’t until March 14, 2022, that he filed an action to overturn the order. The court was concerned with this delay.
It was up to the father to ensure he was checking his email, including the spam folder
Ultimately, the court found that the father’s explanations for not responding to the mother’s actions were not plausible. Even if the correspondence found its way into the father’s junk email folder, the court said that was no excuse, adding “it is his obligation to regularly check his spam or junk folder and there is no evidence that he ever did so.”
On top of the communication sent by email, the father was also made aware of the mother’s application because, during their email communications, she had asked him to comply with his discovery obligations under the Family Law Rules. He even attempted to negotiate details concerning the rental property, meaning he had to be aware of her application.
The court then went on to state that even if the father’s excuses as to why he had not responded to the action were valid, it still had to ask whether “he has an arguable defence on the merits that has an air of reality.” The court determined the father did not have an arguable defence.
The equalization of family property was done based on clear evidence, as was the order related to child support. The matter of parenting time was not addressed during the trial and is something the parents can continue to pursue. Lastly, the court turned to whether the father faced potential prejudice if the order was not overturned, but quickly dismissed this risk. Any prejudice the father faced, the court concluded, is a direct result of his own failure to participate in the process.
Contact Johnson Miller Family Lawyers for help with even the most complex family law problems
The experienced family law team at Johnson Miller Family Lawyers has over 25 years of experience helping clients with all matters related to family law, including those related to child and spousal support orders. We routinely help clients with difficult issues such as complex property and asset division. Please contact us online or by phone at 519-973-1500 to book an initial consultation and see how we can assist you today. We look forward to hearing from you.
